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TMI Blog2022 (9) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... P (IB) No. 1262/MB-IV/2021 - - - Dated:- 20-9-2022 - Mr. Manoj Kumar Dubey Hon ble Member ( Technical ) And Mr. Kishore Vemulapalli Hon ble Member ( Judicial ) For the Petitioner : Mr. Deep Roy a/w Ms. Radhika Raman, Advocates For the Respondent : Mr. Tanmay Kelkar a/w Mr. Aniruth Purusothaman, Advocates ORDER Per : Kishore Vemulapalli , Member ( Judicial ) 1. This is an application being C.P. (IB) No. 1262/MB/C-IV/2021 filed by State Bank of India, the Financial Creditor/Applicant, under section 7 of Insolvency Bankruptcy Code, 2016 (I B Code) against R J Bio- Tech Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). 2. The Application is filed by Mr. Ram Kumar Sharma, Authorised Signatory of the Financial Creditor, claiming total default of Rs.50,13,08,535.88/- (Rupees fifty crore thirteen lakh eight thousand five hundred thirty-five only) which includes: Principal outstanding of Rs.24,63,90,110.51/-; Inters outstanding of Rs.22,94,22,162.31/-; and Penal outstanding of Rs.2,54,96,263.06/- as on 30.08.2021 3. The Date of Default as mentioned in the Petition is 27.06.2016 which is the Date of NPA. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Guarantor have executed revival letters dated 13.02.2014 and 23.09.2016 in favour of the Financial Creditor thereby acknowledging and accepting the correctness of balance outstanding in its loan accounts as on 31.03.2016. e) The Corporate Debtor has also executed Balance Confirmation dated 15.04.2016 in favour of Financial Creditor thereby acknowledging and accepting the correctness of balance outstanding in its loan accounts as on 31.03.2016. f) The Account of the Corporate Debtor has turned NPA on 27.06.2016 in accordance with the RBI guidelines and directives. Thereafter, the Bank issued Demand Notice dated 29.06.2016 under section 13(2) of SARFAESI Act, 2002. The Corporate Debtor did not reply to the said Demand Notice. Then the Financial Creditor issued a Legal Notice dated 30.03.2017 to the Corporate Debtor and its Guarantor in respect of outstanding dues of Corporate Debtor. the Legal Notice was duly served, however, neither the Corporate Debtor nor its Guarantor responded to the Legal Notice. g) The Annual Report for F.Y. 2017-18 and 2018-19 along with Annual Balance Sheet for F.Y. 2020 for the Corporate Debtor showing the existence of debt has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n stand expired on 27.06.2019. The Financial Creditor has failed to prove the occurrence of default. c) The Letter of Arrangement annexed to the Petition has been signed and acknowledged by the Branch Manager, Aurangabad Branch, whereas, the present Petition has been signed and initiated by the Assistant General Manager and hence the same is liable to be dismissed on this ground for want of authority. d) The Financial Creditor has not paid the requisite Stamp Duty in respect of a sum of Rs.20,92,00,000/- (Rupees twenty crore ninetytwo lakh only) as per the provisions of Maharashtra Stamp Act, 1958 on the following documents: i. Board Resolution of the Corporate Debtor dated 09.01.2012; ii. Letter of Arrangement of Corporate Debtor dated 09.01.2012; iii. Guarantee Agreement executed by the Directors and the Guarantor dated 09.01.2012; iv. The Letter of Confirmation for creation of Mortgage by Deposit of Title Deeds dated 09.01.2012; v. Consent Letter dated 11.01.2012 and Tripartite Agreement dated 16.01.2012; vi. MIDC Consent Letter dated 11.01.2012 and Tripartite Agreement dated 16.01.2012; e) The Financial Creditor has not paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prayagchand Hanumanmal within the meaning of section 18 of the Limitation Act, 1963 and extend the period of limitation for the discharge of the liability as debt c) To support the said contention, the Financial Creditor has relied upon A.V. Murthy Vs. B.S. Nagabasavanna (supra) was followed in S. Natararajan Vs. Sama Dharman (2002) 2 SCC 642, Crl/ A. No. 1524 of 2014, judgement of Culcutta High Court in Bengal Silk Mills Co. V. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128: AIR 1962 Cal 115, etc. d) The Financial Creditor submits that the Financial Creditor has duly paid requisite stamp duty in respect of execution of all the agreements as annexed to the Petition. To support the above said contention, the Financial Creditor has relied upon Ashish Kumar V. Nagpur Nagarik Sahakari Bank Limited Anr (CA(AT) (Ins.) No. 355 of 2022), the Hon ble NCLAT held as under: 5. We have perused the impugned order. In para 7 of the impugned order, document executed by the Corporate Debtor has been noticed. One of the facts which has been noticed is that present is a case of mortgage by deposit of title deed. Even if the facility agreement was not stamped, there was ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the matter was again listed on 28.07.2022 for reporting settlement. On the hearing dated 28.07.2022, the counsel for the Corporate Debtor submitted that the Corporate Debtor unable to pay an amount of Rs.10,00,00,000/- (Rupees ten crore only) and the OTS proposal submitted by the Corporate Debtor to the Financial Creditor was rejected by the Financial Creditor. 13. Learned Counsel appearing on behalf of the Corporate Debtor has relied upon the Hon ble Supreme Court Judgment in Rais Ahmad Vs. State of UP Ors. in C.A No. 4446 of 1999 decided on 13.08.1999 in paragraph 10. This Bench has observed that the fact of this particular Judgment is not applicable to the case of Corporate Debtor and hence, the contentions of the Corporate Debtor is not acceptable. Hence IA No.1900 of 2022 was dismissed on 28.07.2022. In view of this, the Bench is finds that the Petition filed by the Financial Creditor is liable to be admitted as the ample opportunity was given to the Corporate Debtor to settle the matter, and however, the Corporate Debtor failed to settle the same. 14. After perusal of the material on record, this Bench is of considered view that the there is no reason to deny t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period. III. That the provisions of sub-section (1) of Section 14 of I B Code shall not apply to a. such transactions as may be notified by the Central Government in consultation with any financial sector regulator; b. a surety in a contract of guarantee to a Corporate Debtor. IV. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under subsection (1) of section 31 of I B Code or passes an order for the liquidation of the corporate debtor under section 33 of I B Code, as the case may be. V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of I B Code. VI. That this Bench appoints Mr. Anurag Kumar Sinha, a registered insolvency resolution professional having Registration Number [IBBI/IPA-001/IP-P00427/2017-18/10750], as Interim Resolution Professional to carry out the functions as mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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