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TMI Blog2021 (10) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... or short IBC) was admitted and appointed the Interim Resolution Professional and rejected the CA No. 519/2019 filed by the Appellant (herein). 2. The facts giving rise in the instant Appeal are as under: i) That the Appellant is a Creditor and holds an Arbitral Award dated 06.02.2019 for a total sum of Rs. 3,48,41,071/- against the Respondent No. 1/ Corporate Debtor in lieu of the unpaid rents by the Corporate Debtor Company and a continuously accruing interest @ 12% per annum as the Appellant was the landlord of the Respondent / Corporate Debtor for the premises at Block G, Greenwood City, Sector 40, Gurgaon, i.e. the Registered Office address of the Respondent. ii) The Corporate Debtor - Respondent No. 1 is the wholly owned subsidiary of a Foreign Company namely, M/s TVM Capital Healthcare Partners Ltd. The entire management and finances of the Corporate Debtor were being regulated through the said Parent Company. iii) The Corporate Debtor - Respondent No. 1 was engaged in the business of providing assisted reproductive technology services, including in vitro fertilisation (IVF) to couples in need. iv) Further case is that the Appellant had given the premises at Block G, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the Appellant was the Operational Creditor of the Corporate Debtor. 7. It is further submitted that the Section 10 petition was filed by the Corporate Debtor on the basis of the EOGM held on the said premise on 31.10.2018 at 1PM. The contention of the Appellant was that no such EOGM had taken place as the premise was in the possession of the Appellant. 8. It is further submitted that the Section 10 of the IBC provides that while filing the petition there are certain mandatory requirements. The Section 10(3)(c) provides as under: "(3) The corporate applicant shall, along with the application, furnish- (c) the special resolution passed by shareholders of the corporate debtor or the resolution passed by at least three-fourth of the total number of partners of the corporate debtor, as the case may be, approving filing of the application. " 9. It is further submitted that the mandatory requirement of passing a special resolution for taking the decision of filing a petition under Section 10 of the Code. There was no EOGM took place on the documents which was furnished before the Ld. Adjudicating Authority is false documents. 10. It is further submitted that the Ld. Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g following information / documents / handing over the control and custody of the assets:- a) particulars of directors of suspended board, key managerial persons, Statutory Auditors, company Secretaries and managers, Shareholders/members of Corporate Debtor, their addresses, email ids, phone/mobile numbers. b) Particulars of all bank accounts maintained by the Corporate Debtor as on 29.05.2020, along with complete addresses of branches, their email ids as well as their phone numbers or mobile numbers of the concerned executives. c) To provide complete details of cash and bank balances as on 29.05.2020. 16. Status report further reveals that the members of suspended board of Corporate Debtor, provided some information and the last financial statement for year ending 31.03.2018 which was unaudited vide their emails dated 08/09.06.2020. However, complete information was not provided. 17. Status report further reveals that in response to IRP's emails and letters, members of the suspended board of Corporate Debtor intimated that Corporate Debtor's assets / records, pertaining to their business i.e. running of Hospital and clinics are laying as under: i) Registered Office and H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report further reveals that on 02.06.2020, the IRP emailed a letter to the statutory auditors of the Corporate Debtor i.e. Bourn Hall International India Private Limited about the commencement of its CIRP and appointment of IRP and sought the audited financial statements up to date and provisional financial statement as on 29.05.2020, being the insolvency commencement date and other relevant information/documents. The auditors provided financial statements for the year ending 31.03.2017 (audited) and 31.03.2018 (unaudited) and for the rest, they declined, as they were not having any access to the books of accounts. 20. Status report further reveals that the Resolution Professional verified that Corporate debtor is not a going concern and there was no employee at any level since October, 2018. 21. Status report further reveals that it came to the notice of Resolution Professional that Corporate Debtor is maintaining following Bank Accounts and has made correspondence with the respective Bank, Resolution Professional is successful in getting details, which are as under: I. Bank of India, I G/52, B.P.NIT, Opposite Daulat Ram D, Near Bus-stand, Faridabad-121001 The Bank of India, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial statements ending 31.03.2018, 31.03.2019, 31.03.2020 and provisional financial statement as on 29.05.2020 (the date of commencement of insolvency process). c. Pursuant to Regulation 35A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the RP did not form any opinion for the preferential payments and other transactions covered under Sections 43, 45, 50 or 66 of the IBC, 2016. d. Pursuant to Regulation 36A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, the RP did not published form G, inviting of Expression of interest from the prospective resolution applicants, as in the absence of control and custody of assets of Corporate Debtor, the purpose of inviting of expression of interest will be defeated. 25. Status report further reveals that the Corporate Insolvency Resolution Process cost incurred / to be incurred, as details given below, is yet to be paid to the Resolution Professional: 26. Status report further reveals that the CIRP cost amounting to Rs. 18,52,046/- has been incurred / to be incurred till date (duly approved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Form-6 and the Form was signed by Respondent No. 3 - Shri Gautam Chhabra, Director of Bourn Hall International India Pvt. Ltd. It is also an admitted fact that as per resolution dated 31.10.2018 in EGM of members of Bourn Hall International Pvt. Ltd., any one of the directors is authorised to sign and execute all necessary documents, applications and returns for the purpose of giving effect to the Special Resolution according to consent of the members of Barun Hall to the Board of Directors to make an application for initiating CIRP. In Part-III of Form No. 6, the names of the Financial / Operational Creditors are given. There is only one Financial Creditor i.e. HDFC Bank Ltd. 127 suppliers of goods and services have been detailed. RNY Healthcare Services Pvt. Ltd. filed CA No. 519 of 2019 stating that the landlord of the corporate applicant for the premises at Block G, Greenwood City, Sector 40, Gurgaon. It is also an admitted fact that the Bourn Hall International Pvt. Ltd. has been funded by M/s TVM Capital Healthcare Partners Ltd. (owning 100% equity in Bourn Hall International Pvt. Ltd. Cyprus) through M/s Bourn Hall International Pvt. Ltd. Cyprus (holding 99.99% equ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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