TMI Blog2017 (10) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding payment made in relation to the debt/default due has been specified and in the circumstances, the present application seeking for initiation of the Corporate Insolvency Resolution Process (CIRP) has been filed against the Corporate Debtor. - (IB)-130(PB)/2017, (IB)-160(ND)/2017, (IB)-180(ND)/2017, (IB)-181(ND)/2017 - - - Dated:- 5-9-2017 - MR. R. VARADHARAJAN, J. For The Petitioner : Soumitra Chatterjee and Ms. Sriparna Chatterjee, Advs For The Respondent : K. Datta and Hemant Sharma, Advocates. ORDER 1. Since the above four Petitions relate to the initiation of the Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor under Insolvency Bankruptcy Code, 2016 (IBC, 2016) however, filed by different applicants, one of the applicant being the Corporate Debtor itself, and in view of the commonality of the issue involved, namely initiation of CIRP, a common order is passed in relation to the above four petitions. While the Corporate Debtor has filed its application for initiating the CIRP vide Application No. IB-130(PB)/2017 under Section 10 of Insolvency Bankruptcy Code, 2016, the other three applications have been filed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (for brevity AAA Rules, 2016)discloses that the amount in default is claimed to be in a sum of ₹ 54,60,771/- arising out of goods sold by the Operational Creditor to the Corporate Debtor and delivered at its factory at Gurgaon (Haryana) in terms of the purchase orders placed by the Corporate Debtor the details of which are given hereunder: (i) EETL/FP-0134606 dated 18.6.2015 (ii) EETL/FP-0134612 dated 4.9.2015 (b) Subsequent to the delivery of goods in terms of the Purchase orders, it is averred that invoices had been raised by the Operational Creditor, which remain unpaid even as of today even though the payment fell due on 31st March, 2016. In addition to the amount payable under 4 invoices in a sum of ₹ 54,60,771/-, the Operational Creditor also contends that interest is payable @24% on the billed amount as per the invoices which aggregates to a sum of ₹ 14,47,029/- till 21st April, 2017 and, thus, the total amount payable and in default including interest is in a sum of ₹ 69,07,800/-. The Operational Creditor claims that in relation to the default, it had also issued a notice of demand dated 24.4.2007 on the Corporate Debtor by 'Speed Post&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of notice, the Corporate Debtor through its Advocate, it is stated to have caused a reply to be sent to the notice sent by the Operational Creditor dated 28.2.2017. However, it is contended by the Operational Creditor that in the reply, no dispute had been raised against the claim of the Operational Creditor nor any intimation regarding payment made in relation to the debt/default due has been specified and in the circumstances, the present application seeking for initiation of the Corporate Insolvency Resolution Process (CIRP) has been filed against the Corporate Debtor. (IB)-181(ND)/2017: 7(a) Finally coming to the above application which it is seen has also been filed by another Operational Creditor claiming that a sum of ₹ 5,39,821/- is due from the Corporate Debtor towards goods supplied under Purchase Order dated 04.8.2014 and consequent three invoices raised, aggregating in all to ₹ 5,39,821/-. (b) In addition to the above sum, it is claimed that a sum of ₹ 1,59,399/- is also payable towards interest @18% p.a. in view of the provisions of Interest Act, 1978. (c) The total claim as specified in Form-5 of AAA Rules thereby aggregates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexed. (c) In terms of the provisions of IBC, the Corporate Debtor has also named in the prescribed format, the interim Resolution Professional (IRP) as one Mr. Nilish Sharma, having registration No.IBBI-IPA-002/IP-00006/2016-17. The application further furnishes under Para-III of the prescribed format that in view of the default in payment to the Financial Creditors, both Secured Unsecured, the application seeking initiation of CIRP is being preferred. (d) In support of the default, various documents including the minutes of the Joint Lenders Forum, held by Banks under consortium has also been annexed along with the application. In the circumstances, the above application for the initiation of CIRP as against itself is being sought for by the Corporate Debtor under the provisions of IBC, 2016. (e) Even though the above four applications were listed on different dates in view of the commonality of issue involved as discussed in the opening paragraph of this order supra, all the four applications were heard together on 18.8.2017. While in relation to the applications filed by the Operational Creditors were resisted by the Corporate Debtor, however, in relation to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process. The provisions of IBC permeate with the above objective as the Committee of Creditors, under Section 22 of IBC, 2016, is given a right to appoint a Resolution Professional of its choice by either retaining or removing an IRP appointed by this Tribunal with or without the recommendation of IBBI, as the case may be. Thus the scheme of IBC, 2016 as observed by the Hon'ble Supreme Court in its judgement dated 31.08.2017 rendered in Innoventive Industries Ltd. v. ICICI Bank Anr Civil Appeal No.(s) 8337-8339/2017 paragraph 34 is to the following effect: The scheme of the Code, therefore, is to make an attempt, by divesting the erstwhile management of its powers and vesting it in a professional agency, to continue the business of the corporate body as a going concern until a resolution plan is drawn up, in which event the management is handed over under the plan so that the corporate body is able to pay its debts and get back on its feet. All this is to be done within a period of 6 months with a maximum extension of another 90 days or else the chopper comes down and the liquidation process begins. 10. It is further pertinent to note that under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 01.04.2017) was asked to suggest a name in order to avoid delay and also taking into consideration the opposition by the other applicants under provisions of section 9 of IBC, 2016, it pleaded its inability to do so as it was stated that a minimum period of 14 days will be required to come to any conclusion in this regard by the consortium of bankers. Be that as it may, in view of the facts and circumstances of the case this Tribunal felt it necessary to elucidate its stand prior to proceeding further with a view to avoid any ambiguity. 11. Based on the above, we proceed to deal with the individual application of the Operational Creditors taking into consideration the objections raised by the Corporate Debtor vis-a-vis the said applications, including its maintainability in view of non-adherence to the provisions of section 9 of IBC, 2016. 12. However, in all the 3 cases, the common ground by way of preliminary objections which is sought to be raised by the Corporate Debtor is in relation to either a lack of certificate being produced from the Banker of the concerned Operational Creditor's in relation unpaid liability or even if produced, the same being not in consonan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution Professional. Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section. 13. It is evident from the above provision that an Operational Creditor as a pre-condition to maintain an application is required to obtain a Certificate from the financial institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er It may Concern Dear Sir/Madam, This is to certify that WELLMAN WACOMA LIMITED A/C TAX is maintaining a HDFC Bank Current Account number 00082560017424. Cheque* 954275 has been credited to the above mentioned a/c on 03/10/2015. Details are given below: Txn Date : 03/10/2015 Amount : 5,25,627.00 Cheque No.: 954275 The above certificate is being issued on receipt of specific request from the customer without any risk or responsibility on the part of the Bank or any of its officials. For HDFC Bank Ltd. Authorized Signatory HDFC Bank Ltd Stephen House Branch Date : August 16, 2017 Regd. office : HDFC Bank Ltd, HDFC Bank House, Senapati Bapat Marg, Lower Parel, (West) Mumbai-400 013. (c) Perusal of the above certificate issued by the concerned Bank, namely, HDFC Bank Limited clearly discloses that the certificate issued by it is not in consonance with the provisions of Section 9(3)(c) of IBC, 2016 and as directed to be issued in terms of the above order passed by the Hon'ble Principal Bench passed on 02.08.2017 which definitely is required to be explained by the said Bank for non-compliance of the order dated 02 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial Forum for enforcing their claim. 17. CP(IB)-160(PB)/2017: (a) Now, coming to the Application in (IB)-160(ND)/2017, it is seen that the concerned Banker, namely, SBI has issued the following Certificate: As per your letter dated 02/08/2017, we confirm that we have not received proceeds in Cash Credit a/c No. 11000200622 of the following bills (A/c Energo Engineering Project Limited) during the period from 28/01/2016 till 05/06/2017 . Date of invoices Invoice No Amount (Rs) 28/01/2016 399 2760949 28/01/2016 400 1531987 31/03/2016 513 97754 31/03/2016 515 1070081 (b) It is seen that the Banker's Certificate issued by SBI dated 02.8.2017 is in relation to the unpaid amount as claimed by the Operational Creditor in the application as against the Corporate Debtor and which amount is alleged to be the amount in default and for which the applicant claims to have initiated CIRP before thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the default and the Operational Creditor avers that the latter course has been followed and hence there is no infirmity. (g) We have carefully considered the rival submissions and pleadings. While accepting the plea of the applicant - Operational Creditor, we do not find any merit in the contention of the Corporate Debtor as rightly contended by the Operational Creditor as there seems to be a paradox in the contention of the Corporate Debtor which clearly exposes that the dispute which is shown before this Tribunal is moonshine and not bonafide and it cannot be categorized as a dispute within the meaning of Section 5(6) of IBC, 2016. In the circumstances, the application in CP (IB)-160 (PB)/2017 is deserved to be taken into consideration and is hence admitted. (h) However, even though an Insolvency Professional has been named in the Application CP (IB)-160(PB)/2017, declaration of the said IRP with necessary disclosures as mandated under the several rules framed by IBBI including under Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as rightly pointed out by the Corporate Debtor has not been filed and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely essential in a proceeding relating to initiation of CIRP, While in CP No. (IB) 181(ND)/2017 it is seen that despite request of the Operational Creditor, its bankers as evident from the affidavit filed on behalf of it had refused to issue the requisite certificate, in relation to CP. No. (IB) 180(ND)/2017 the banker, namely HDFC Bank has failed to adhere to the statutory mandate as well as the express direction given by the Hon'ble Principal Bench of this Tribunal in terms of it. On the other hand in CP. No. (IB) 160(ND)/2017 the banker of the Operational Creditor had acceded to the request of its constituent and thereby complied with the provisions of Section 9(3)(c) of IBC, 2016. The refusal of the bankers in the first two instance to comply with the provisions of IBC, 2016 has resulted in the rejection of the said applications prima facie in the teeth of provisions of Section 9(3)(c) and judicial precedents of the Hon'ble Appellate Tribunal holding it as mandatory, has also led to an anomalous situation in the present instance as this Tribunal despite the Corporate Debtor expressly admitting the liability in the application filed under Section 10 by it in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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