9911796707
TMI Blog2022 (4) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... OOR , MEMBER ( JUDICIAL ) And HON BLE SHRI PRASANTA KUMAR MOHANTY , MEMBER ( TECHNICAL ) MR. VISHAL GANDA ADVOCATE PETITIONER PRESENT IN NONE VIDEO CONFERENCE ORDER [ Per se : Prasanta Kumar Mohanty , Member ( T ) ] 1. This application under Section 10 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as Code of 2016 ) has been filed by the Corporate Debtor/Applicant, namely Byrnihat Coal Private Limited, seeking initiation of Corporate Insolvency Resolution Process ( CIRP ) against itself. 2. It is submitted that the company i.e. Byrnihat Coal Private Limited (CIN: U51909AS2005OTC007678) was incorporated on March 4, 2005 and is also registered as an MSME under UDYAM-AS-03-0000238. The Petitioner is in the business to obtain, produce, trade etc. in coal, coke and its allied products. 3. The Authorized Share Capital of the Corporate Debtor (CD) Company i.e. Byrnihat Coal Private Limited is ₹ 1,20,00,000 (Rupees One Crore Twenty Lakh only) and the Paid-Up Share Capital is ₹ 1,17,85,000 (Rupees One Crore Seventeen Lakh Eighty-Five Thousand only). The Registered office is situated at House No. 3/1, Rajdeep Complex, First Floor, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Applicant, on account of ban on coal by the Hon ble Supreme Court of India and National Green Tribunal, was unable to make payments to its creditors. Naresh Kumar Harlalka On account of ban of coal mining and lock-down due to covid-19, the Corporate Applicant was suffering huge losses. Therefore, the Corporate Applicant was constrained to take advance from its director, Mr. Naresh Kumar Harlalka of ₹ 5,10,000/- (Rupees Five Lakh Ten Thousand only). However, despite the best efforts of the Corporate Applicant, the Corporate Applicant failed to pay the advances and an amount of ₹ 5,10,000/- (Rupees Five Lakh Ten Thousand only) is still outstanding. Punjab National Bank (Cash Credit Facilities) The Corporate Applicant was sanctioned a credit facility by Punjab National Bank for a total of ₹ 7,00,00,000 (Rupees Seven Crores only) through sanction letter dated February 7, 2015 vide account number 189008700009192. The said Credit Facility comprised of two parts which are as follows: a. ₹ 4.50 crores were disbursed as cash credit (Hypothecation of stocks) at the rate of 12 percent, with a margin of 25 percent for stocks and 40 percent for boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lifting of ban by the Hon ble Supreme Court on coal mining in Meghalaya, the business activity has not yet picked up. 4.5 The Director of the Corporate Applicant met with the officials of the bank, informing them of the pitiable condition of the Corporate Applicant owing to the ban on coal mining by the Hon ble Supreme Court of India. 4.6 The Corporate Applicant was going hammer and tongs trying to save its Bank account from slipping into an NPA. The state of affairs of the Corporate Applicant had been deteriorating owing to the CAA and NRC protests in the north-east and further saw a standstill with the onset of the Covid-19 lockdown restrictions. The Bank vide letters dated 29th October, 2020 and 13th November, 2020 informed the Corporate Applicant that there was an overdue of ₹ 2.36 Crores (Rupees Two Crores Thirty-Six Lakhs only) in the cash credit account. The Corporate Applicant stated that due to the ban of National Green Tribunal, coal extraction and its transportation was heavily impacted and with the adverse impact of Covid-19, the Corporate Applicant faced liquidity mismatch in the operating cycle Punjab National Bank (CFITL). 4.7 The Corporate Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporate Applicant would not be able to continue as a going concern entity. Due to the extreme financial distress, and no compromise being entered into by the parties, the Bank issued a notice under section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interests Act, 2002 ( SARFAESI Act ) dated April 23, 2021 declaring the Cash Credit account, NFB account and CFITL account of the Corporate Applicant as an NPA on account of non-payment of installment/interest/principal debt by the Corporate Applicant. The notice further mentioned that as on March 31, 2021, ₹ 7,48,61,599.89 (Rupees Seven Crore Forty-Eight Lakh Sixty-One Thousand Five Hundred Ninety-Nine only) was due to the Banks. In case of failure to pay the said amount within sixty days of receipt of the SARFAESI notice, the Bank shall enforce the securities provided by the Corporate Applicant in terms SARFAESI Act. 4.10 Despite several attempts by the Corporate Applicant to resume its business, it could not get back on its feet. Thus, on account of default in payment of interest on loans taken from banks and financial institutions on several occasions and considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NEXURE 4 5. A copy of the Amended Memorandum of Association and Articles of Association of Corporate Applicant ANNEXURE 5 (Colly) 6. A copy of the certificate of registration of Corporate Applicant ANNEXURE 6 7. A copy of the loan sanction letter dated February 7, 2015 ANNEXURE 10 8. A true copy of the bank statement for the period from February 1, 2020 to February 29, 2020 of Corporate Applicant. ANNEXURE 11 9. A copy of the letters dated September 4, 2019; September 10, 2019; November 5, 2019 and December 3, 2019. ANNEXURE 12 10. A true copy of the statement of bank account along with the ledger ANNEXURE 23 11. A copy of the recall notice dated April 13, 2021 ANNEXURE 24 12. A copy of the notice under SARFAESI Act dated April 23, 2021 to the Corporate Applicant ANNEXURE 26 13. A copy of the notice for an Extr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drag the recovery proceedings by pretending to pursue the relief of resolution in this Hon ble Tribunal. 9.3 Sri Kamal Kumar Harlalka, is a share-holder having percentage share in the petitioner company and he is also a personal guarantor in respect of the facilities granted to the petitioner company. The said person is also a Director in M/s RSH Agro Products Pvt. Ltd. which according to the petitioners is an unpaid operational creditor of the petitioner company and has alleged unpaid dues/claims. Evidently, the said Sri Kamal Kumar Harlalka being the key person in both the Petitioner Company as well as M/s RSH Agro Products Pvt. Ltd. such claims of unpaid dues by the operational creditor is only a device to ensure the dominant participation of the existing promoters/ Directors in any future Committee of Creditors (COC) which may be constituted after the admission of the instant application. The Respondent Bank has filed the relevant details from the website www.mca.gov.in. 9.4 The Bank has also filed O.A No. 301/2021 in the DRT, Guwahati under section 19 of the Recovery of Debts and Bankruptcy Act. The bank has claimed an amount of ₹ 6, 91, 28,926 (Rupees Six Crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le National Company Law Appellate Tribunal, New Delhi has held in Unigreen Global Private Limited, In re, 2017 SCC Online NCLT 1780 that if any action has been taken by a Financial Creditor under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ( SARFAESI Act ) against the Corporate Debtor or a suit is pending against Corporate Debtor under Section 19 of Debt Recovery Tribunal Act, 1993 before a Debt Recovery Tribunal cannot be a ground to reject an application under Section 10 of the Code, if the application is complete. Similarly, in the case of Ramesh Kumar Gupta Vs. Mahesh Bansal, Company Appeal (AT) (Insolvency) No. 1408 of 2019, the Hon ble National Company Law Appellate Tribunal, New Delhi has held that pendency of any action under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 shall not be a bar to initiate proceedings under Section 7 of the Code. The relevant portion is reproduced as follows: The pendency of actions under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 does not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against itself. The Corporate Applicant and as well as the Financial Creditor have confirmed that the account of the Applicant is NPAs and the Applicant has defaulted in making payments of interest and installments to the FC here. There is no dispute that the debt is not due, not payable and not defaulted. On the other hand, the learned Counsel appearing for the Applicant has prayed for admission of the Application. 13. Reliance is placed on the judicial precedents of Hon ble Supreme Court in the matter of M/s Innovate Industries Ltd. vs. ICICI Bank Anr. as well as Hon ble NCLAT in the matter of Unigreen Global Pvt. Ltd. vs. Punjab National Bank Ors., Co. Appeal (AT) (Insolvency) No. 81 of 2017, we find that the contentions/objections of the Financial Creditor/Objector (Punjab National Bank) have no merits as the legal position in this respect has already been settled by the Hon ble Supreme Court as well as Hon ble NCLAT. Therefore, pendency of SARFAESI proceedings or proceedings before the DRT cannot be a valid ground not to initiate Corporate Insolvency Resolution Process under section 10 of the Code in respect of the Corporate Applicant/Corporate Debtor, if such applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of initiation of Corporate Insolvency Resolution Process against itself; Hence, the present IB Petition is admitted with the following directions/observations. The date of admission of this petition is 01.04.2022. 15. As per the provisions of Section 13 and 14 of the IB Code on the date of commencement of insolvency, this Adjudicating Authority declares moratorium with effect from today for prohibiting all of the following, namely: 15.1 (a) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority. (b) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein. (c) Any action to foreclosure, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002). (d) The recovery of any property by an owner or lessor where such prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Section 20 of the Code, Rules and Regulations. 18. One of the prime objectives of the Insolvency and Bankruptcy Code, 2016 is to quickly find out a viable Insolvency Resolution Plan for the Corporate Debtor and in order to have a Resolution Plan Viable, feasible and implementation successful, in the era of Minimum Cost of funds-based Lending Rate ( MCLR )/Repo Linked Interest rate/Interest rate falling regime and competitive market condition, the Committee of Creditors (COC) may explore, while finalizing the Resolution Plan for the Corporate Debtor a MSME Unit, the possibility of loading maximum interest at the Respondent Bank s One Year MCLR or One Year MCLR+ 1% without any penal/overdue interest. 19. The Registry is hereby directed to communicate the authenticated copy of this order to the Financial Creditor, Corporate Debtor Company, the IRP and also to the Registrar of Companies, Guwahati immediately through speed post/registered post and e-mail, if available. 20. The commencement of Corporate Insolvency Resolution Process shall be effective from the date of this order. 21. Thus, the present IB Petition filed under Section 10 of the IBC stands admitted today i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
