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TMI Blog2022 (10) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Process (CIRP) against Prakash Vanijya Private Limited (hereinafter referred to as the Corporate Debtor). 3. The Corporate Debtor is a private company incorporated on 17.06.2004. The authorised share- capital of the company is Rs.40,00,00,000/- and the paid-up share- capital of the company is Rs.1,76,10,000/-. 4. The total amount claimed by the Financial Creditor is Rs.7,44,97,37,755/-. The account of the Corporate Debtor became Non-Performing Asset (NPA) on 30.09.2012, as mentioned in page 6 of the petition. The name of the Interim Resolution Professional has been proposed in the petition. 5. Submissions on behalf of the Financial Creditor: 5.1 The case of the Financial Creditor is that it provided credit facilities in form of Letter of Credit to the Corporate Debtor for the first time on 14.08.2009. thereafter, the same was enhanced from time to time and lastly on 13.07.2011. The Corporate Debtor had defaulted in the repayment of the said letter of credit and accordingly the account of the Corporate Debtor was turned NPA on 30.09.2012. The last amount repaid by the Corporate Debtor was a sum of Rs.53 Lakh. The same was repaid on 05.06.2014. 5.2 The financial Creditor has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d settlement letters to that effect were exchanged between the parties. In pursuance to the settlement, an amount of Rs.3.30 Crore has been paid by the Corporate Debtor to the Bank. As such, the Financial Creditor is estopped from proceeding with the instant petition. 7 Supplementary Affidavit dated 13.04.2021 on behalf of the Corporate Debtor: 7.1 It is reiterated by the Corporate Debtor that the instant petition is barred by limitation since the date of declaration of the Corporate Debtor's account as NPA was on 30.09.2012 and the Financial Creditor did not take the requisite action against the Corporate Debtor for the following 3 years. 7.2 It is submitted that the Corporate Debtor submitted an offer for One Time Settlement (OTS) to the Financial Creditor on 08.08.2019. Pursuant to the said OTS, the Corporate Debtor made payments to the tune of Rs.11.07Crore to the Financial Creditor. Thereafter several communications were exchanged between the parties regarding the modifications to the OTS, default of the OTS amount by the Corporate Debtor, inability of the Corporate Debtor to repay the OTS amount in light of the outbreak of Covid-19 and the subsequent revocation of the OTS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the Financial Creditor: 9.1 It is reiterated herein that the instant petition is within the period of limitation since the Corporate Debtor, post the declaration of Corporate Debtor's account as NPA, acknowledged its debt on multiple occasions. 9.2 It has been denied that the Financial Creditor cannot institute the instant petition till the adjournment of the proceedings before DRT. It is further denied that there is no valid authorization in the instant petition and as such the petition is liable to be dismissed. 10 I.A. No. 1022/KB/2022 of behalf of the Corporate Debtor: 10.1 The Instant interlocutory application has been filed by the Corporate Debtor, praying for rejection of CP. (IB) No. 376/KB/2019 and for imposing penalty upon the Financial Creditor under section 65 of the Code. 10.2 The Corporate Debtor has submitted that the Financial Creditor, for the alleged default in CP. (IB) No. 376/KB/2019 has already moved before the DRT Kolkata Bench. Further, an OTS proposal with an offer amount of Rs.80 Crores was approved by the Financial Creditor vide letter dated 27.11.2019. Acordingly, a total amount of Rs.11.07 Crores was paid by the Corporate Debtor herein to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts in support of its claims: a. Pawan Kumar Vs. Utsav Securities Pvt. Ltd & Ors. MANU/NL/0307/2021, Para 32; b. Beacon Trusteeship Ltd. Vs. Earthcon Infracon Pvt. Ltd. & Anr. 2020 SCC OnLine SC 1233, Para 7; c. Anita Jindal Vs. M/s Jindal Buildtech Pvt. Ltd. MANU/NL0500/2022 Para 17 and 18; d. Telha Sareshwala Vs. Parsoli Motors Works Pvt. Ltd. and Ors. MANU/NL/0256/2022; e. Embassy Property Developments (P) Ltd. v. State of Karnataka (2020) 13 SCC 308. 11 Analysis and Findings: 11.1 We have heard the Ld. Counsel for the Financial Creditor and the Ld. Counsel for the Corporate Debtor and perused the record. 11.2 The instant application has been filed by Financial Creditor seeking initiation of CIRP against the Corporate Debtor. Part -I of application contains particulars of Financial Creditor. Part-II contains particulars of the Corporate Debtor. Part -III contains particulars of the IRP. Part-IV contains particulars of debt. 11.3 Rs.7,44,97,37,755.00/- is claimed to be in default as on 31.01.2019. The account became NPA is stated to be 30.09.2012. 11.4 It is also stated by the Ld. Counsel that subsequent to the filing of the present petition under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor has failed to clear its debt and there is a default of the amount claimed and in view of the position stated in paragraphs 'a' to 'e' in rejoinder, the petition is within the period of limitation. 11.10 The Ld. Counsel for the Financial Creditor in its rejoinder has further placed reliance on Annexure-A on page 21 contending that there is a proper authorization by the Bank authorizing Mr.Tusar Kanti Roy to file this petition and accordingly this petition has been filed by Mr.Tusar Kanti Roy. 11.11 While considering the argument on behalf of the Corporate Debtor with respect to operation of Section 10A, the Ld. Counsel for the Financial Creditor has placed reliance on letter dated 27.11.2019 which is at page 22 of Supplementary Affidavit stating that in terms of the OTS, the Corporate Debtor failed to deposit the amount specified in the OTS before 31.12.2019 which was much prior to the Covid-19 and incorporation of Section 10A. 11.12 Having heard both the parties and perused the record, it is clear that the Corporate Debtor's contention that the instant petition is barred by limitation is not a valid one. In light of the acknowledgements dated 31.03.2014, 01.04.2014, 06. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically mentions that in case of default of any installments as stipulated in the said sanction, the OTS shall get lapsed. 11.16 Due to default by the Corporate Debtor concerning the OTS payments due on 31.12.2019, the request to revise the payment schedule was rejected by the Financial Creditor vide letter dated 06.12.2019. While the OTS was explicitly revoked on 06.12.2020 by the Financial Creditor, it was implicit in the OTS proposal itself that the same would lapse upon not following the schedule. As such, the OTS proposal stood lapsed on the default dated 31.12.2019 itself. 11.17 Further, vide order dated 21.01.2021 in IA No. 11/KB/2021, the instant petition was ordered to be restored as it is clear from the said order that the Corporate Debtor had admitted to its default in adhering to the terms and conditions of the OTS. As such, the Financial Creditor is well within its rights to initiate CIRP proceedings against the Corporate Debtor for the initial cause of action. Therefore, the revival of the instant petition is valid and maintainable. 11.18 Further, it can be seen that pages 20 to 31 of the petition contain the general power of attorney given to Mr. Tusar Kanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise." (Para 30) 11.21 The Corporate Debtor has on several instances, admitted to the existing Financial Debt and its default and the same is also reflected in the report issued by CIBIL. Further, the petition is within the period of limitation and above the pecuniary threshold for the relevant period of time i.e Rupees One Lakh. 11.22 In view of the above facts based on record, the present petition made by the Financial Creditor is complete in all respect as required by law. The petition establishes that the Corporate Debtor is in default of a debt due and payable. 11.23 Further, we don't find any substance in the interlocutory application being I.A. No. 1022/KB/2022. The petitioner has been able to establish its right to initiate the CIRP of the Corporate Debtor on the basis of documents relied upon in part 5 of the petition. This is apart from the express admissions from the Corporate Debtor regarding its liability towards the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RP in respect of the Corporate Debtor. h) The Operational Creditor shall initially deposit a sum of Rs.5,00,000/- (Rupees five lakh only) with the IRP to meet the expenses arising out of issuing public notice, inviting claims and towards the fee of the IRP. These expenses and the fee are subject to approval by the Committee of Creditors (CoC), in accordance with Notification No. IBBI/2022-23/GN/REG091 dated 13.09.2022, issued by the Insolvency and Bankruptcy Board of India, as published in the in the Official Gazette. i) In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post, email immediately, and in any case, not later than two days from the date of this Order. j) Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, Kolkata by all available means for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receipt of a copy of this o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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