Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2021 (3) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (3) TMI 1333 - NATIONAL COMPANY LAW TRIBUNAL PRINCIPAL BENCH NEW DELHIMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - whether or not this Bench can pass Section 7 petition order on the application moved by Creditor i.e. Asset Care and Reconstruction Enterprises Ltd. based on the Assignment deed dated 23.03.2019? - HELD THAT:- It is evident on record and it is also not in dispute that the Corporate Debtor is a subsidiary to its holding Company i.e. SARE Public and distinct entity having its properties in its name. It is no more res Integra that once IBC petition is filed, the only point i.e. to be decided is whether debt and default have been proved by the petitioner who has filed an application for initiation of Corporate Insolvency Resolution Process regardless of the proceedings pending before various Courts. Here this order is passed in a declaration suit filed by Receiver appointed to take control of the Corporate Debtor holding company. In the order under Order 39 Rule 1 & 2 CPC, it has been made clear that undertaking given by the holding company on behalf of Subsidiaries Company is not binding on the subsidiary companies because they are distinct entities having freedom to take actions as per its requirement. Therefore, once IBC proceeding is initiated, unless the proceeding in which order has been granted has overriding effect over IBC, such proceeding or order cannot come in the way of admitting a Company Petition under Section 7 of the Code. Upon perusal of the documents, it appears that these loans were given to the Corporate Debtor in between 2015 and 2018 i.e. before the Hon'ble High Court of Delhi passed order on 12.10.2018. In the said order, it has only been said that Altico should not create any third party right in favour of others. However, since there are two transactions one is Debenture transaction and another is Facility Agreement, out of these two, none being repaid by the Corporate Debtor despite notice has been served upon it, even if Facility Agreement issue is excluded as per the order of Honourable High Court of Delhi passed on 12.10.2018 then also, the financial creditor could establish its case by saying that Assignment with respect to Debentures is valid and not in violation of the orders of Hon'ble High Court and there being no contest with regard to the debt and default from the Corporate Debtor side, we believe that the applicant herein has proved the existence of debt and default under both the transactions. With regard to facility agreement, that issue being pending before the Hon'ble High Court of Delhi, since the petitioner has proved existence of debt and default in relation to debentures issued for an amount of ₹ 95 Crore and ₹ 220 Crore along with interest, it is held that it is a case fit for admission to initiate CIRP taking default of repayment of debenture amounts by the corporate debtor, in view thereof, this petition is hereby admitted. Petition admitted - moratorium declared.
|