9911796707
TMI Blog2022 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the Corporate Debtor has defaulted in payment of a sum of Rs.40,14,94,934.51 (Rupees Forty Crores Fourteen Lakh Ninety Four Thousand Nine Hundred Thirty Four and Fifty One Paisa only), advanced by the Financial Creditor to the Corporate Debtor as a Credit Facility ('Credit facility' or 'Loan'), including interest @10.80% from 01 July, 2018. 4. It is submitted in the Petition, Part - II that the authorised share capital of the Corporate Debtor is Rs.95,00,00,000/- (Rupees Ninety Five Crores only) with paid up Capital as Rs.87,93,16,000/- (Rupees Eighty Seven Crore Ninety Three Lakh Sixteen Thousand only). 5. Submissions by the Ld. Counsel appearing on behalf of the Financial Creditor 5.1 The Financial Creditor was approached by the Corporate Debtor for several credit facilities for setting up a manufacturing unit of Ferro Alloys at Kadavita Dendua Road. Subsequently, the Financial Creditor sanctioned the Credit facility (sanction letter dated 29 September, 1997). However, the said credit facility was renewed from time to time. Except the Financial Creditor, the SBI and IDBI also extended financial assistance to the Corporate Debtor. 5.2 Thereafter pursuant to the reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the company has filed balance sheet for the year ended at 2016- 2017 before the ROC, Kolkata wherein the said company has acknowledged the liability with the Financial Creditor (at Page 1554 to Page 1589 of section 7 application). The said balance sheet showing acknowledgement can be relied upon as an existence of debt. 6. Submissions by the Ld. Counsel appearing on behalf of the Corporate Debtor 6.1 It is settled proposition in law that the law of limitation is applicable to the proceedings under the Code. However, in this application the Financial Creditor itself has stated that the date of purported default is 30 April, 2014. Being the date of purported default, the Financial Creditor should have initiated the proceedings under the Code before or on 01 December, 2016. Hence, the Application is barred by limitation. 6.2 As per the inter-se agreement entered into between the Financial Creditor and the State Bank of India being the lead banker of the Corporate Debtor was authorised by the Financial Creditor to take steps in order to resolve the purported stressed assets of the Corporate Debtor. All the Financial Creditors along with the lead banker being State Bank of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 'Bartaman' by the petitioning creditor of C. P. No. 613 of 2016 in accordance with the Company (Court) Rules and thus the winding up proceeding against the Corporate Debtor assumes. Hence, due to the pendency of the winding up proceeding before the Hon'ble High Court at Calcutta being C. P. No. 613 of 2016, this instant application filed by the Financial Creditor against the Corporate Debtor is not maintainable (Annexure F of the Reply). The jurisdiction solely lies with the Hon'ble High Court at Calcutta and the Financial Creditor cannot be permitted to proceed in parallel proceedings before this Adjudicating Authority. Analysis and Findings 7. We have heard the Ld. Senior Counsel appearing on behalf of the Financial Creditor and the Ld. Counsel appearing on behalf of the Corporate Debtor. 8. With respect to the contention of the Corporate Debtor that the matter of winding up proceeding is pending before the Hon'ble High Court at Calcutta. It is pertinent to mention in the order dated 20 April, 2022 the Hon'ble High Court at Calcutta has held that "In view of the aforesaid, CP/613/2016 stands transferred to the National Company Law Tribunal, Kolkata. The department will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is apparent that transaction between the parties was purely financial in nature and there is an existence of Financial Debt. In light of the above facts and circumstances, the present petition filed 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. 13. Accordingly, it is, hereby ordered as follows :- (a) The application bearing CP (IB) No. 1068/KB/2018 filed by Punjab National Bank, the Financial Creditor, under section 7 of the Code read with rule 4(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against Impex Ferro Tech Limited, the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC. (c) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
