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TMI Blog2022 (10) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... are clearly an afterthought and was done after two years from receiving the notice for this Company Petition. The present petition made by the Financial Creditor is complete in all respects as required by law. The Petition establishes that the Corporate Debtor is in default of a debt due and payable and that the default is more than the minimum amount stipulated under section 4 (1) of the Code, stipulated at the relevant point of time - petition admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... es Six Crore only) at the rate of 12.5%. 9. The Corporate Debtor paid a few installments and then defaulted in payment. 10. The Financial Creditor recalled the loan vide letter dated 06 February 2019, the Corporate Debtor made payment of the defaulted instalment for the month of January 2019 on 07 February 2019. The Corporate Debtor replied to the recall notice on 19 February 2019 where in the corporate debtor denied the existence of any debt. Another recall notice was sent on 20th February 2019 which was duly received by the Corporate Debtor and its directors but the Corporate Debtor failed to make payment. 11. The Corporate Debtor replied through its advocate on 01 March 2019 making bare denial and dispute to the said letters. Vide letter dated 04 April 2019, the Financial Creditor clarified the disputes raised by the Corporate Debtor. 12. It is further submitted that the Corporate Debtor vide letter dated 04 February 2019 sought for restructuring claiming to be a Micro Small Medium Scale Industry ("MSME") on the basis of a RBI Circular. The Financial Creditor vide letter dated 04 April 2019 called upon the Corporate Debtor to prove that it is an MSME. 13. The Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 121 of the Company Petition. 19. Court Notice had been served on the Corporate Debtor on 22 August 2019. The Corporate Debtor entered appearance on 24 October 2019. Submissions of Mr. Joy Saha, Learned Senior Counsel appearing for the Corporate Debtor. 20. Mr. Joy Saha led us through page 24 of the Company Petition and submitted that Prapti Fashions Private Limited was not a party to the settlement dated 29 December 2017. The other individuals have signed the settlement agreement in the capacity of employees of Madhuri Commodities Private Limited which is clear from the address given at paragraphs 3.2.2. to 3.2.5 of the settlement agreement. 21. There is no document to prove that the Financial Creditor disbursed any amount to the Corporate Debtor. No loan was disbursed to the Corporate Debtor on 11 January 2018. 22. The Borrower's name is blank in the Facility Agreement at Page 46 of the Company Petition. The said Facility Agreement has been signed by Prapti Fashions Private Limited and Madhuri Commodities Private Limited, hence the sum of Rs.6 Crore was in fact the debt of Madhuri Commodities Private Limited. 23. Mr. Joy Saha then refereed to Page 13 of the Company Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-in-reply. Issues 32. The issues in question in the present C.P are: a. Whether there was a loan agreement between the Financial Creditor and Corporate Debtor? b. Whether the Financial Creditor did not disburse any amount to the Corporate Debtor? Analysis and Findings 33. Heard the learned Counsel appearing for the Financial Creditor and the learned Senior Counsel appearing for the Corporate Debtor and perused the record. 34. The defence raised by the Corporate Debtor comprises of the following: a. There was no loan agreement between the Financial Creditor and the Corporate Debtor. b. The Financial Creditor did not disburse any amount to the Corporate Debtor. 35. To see whether the contentions raised by the Corporate Debtor hold water or not, let us first peruse the Facility Agreement dated 11 January 2018. The name of the borrower has not been mentioned at page 46 of the Company Petition but the name and details of the Corporate Debtor has been mentioned at page 58 of the Company Petition under the heading "DETAILS OF THE BORROWERS". The name of Madhuri Commodities Private Limited has been given as Co- Borrowers. 36. Apart from that, on perusal of the replies t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Code, stipulated at the relevant point of time. 44. On perusal of the number of assignments assigned to Mr. Kanchan Dutta in the IBBI website it is seen that he has 27 assignments https://ibbi.gov.in/en/insolvency-professional/details?fieldid=Mzkx assigned to him. Since this is a matter filed in 2019 and in the interregnum, clearly several more assignments have been assigned to him. We shall appoint another Insolvency Professional as given by the Board in keeping with the guidelines in this regard as envisaged in Regulation 22 22. An insolvency professional must refrain from accepting too many assignments, if he is unlikely to be able to devote adequate time to each of his assignments. Page 17 of 35 37[Clarification: An insolvency professional may, at any point of time, not have more than ten assignments as resolution professional in corporate insolvency resolution process, of which not more than three shall have admitted claims exceeding one thousand crore rupees each.] of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016. 45. In the light of the above facts and circumstances, it is, hereby ordered as follows:- a. The applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authorities to render all assistance as may be required by the Interim Resolution Professional in this regard. h. The IRP/RP shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIRP in respect of the Corporate Debtor. i. The Financial Creditor shall deposit a sum of Rs 3,00,000/- (Rupees Three Lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC) and shall be in accordance with the latest regulation issued by IBBI in this regard j. 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 and WhatsApp immediately, and in any case, not later than two days from the date of this Order. k. Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, 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 Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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