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M/s. Visa Drugs & Pharmaceuticals Private Limited Versus M/s. Swan Aluminiums Private Limited

2017 (10) TMI 571 - NATIONAL COMPANY LAW TRIBUNAL, CHANDIGARH

Winding up of the company for its inability to pay the debt - Held that:- Since there is a default committed by the respondent as proved from the aforesaid discussion and the application being complete in all respect, the resolution professional has also been proposed, the instant petition deserves to be admitted. - In view of the above, the instant petition is admitted and the moratorium is declared for prohibiting all of the following as provided in section 14(1) - As directed that th .....

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pproves the resolution plan under sub- section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33 as the case may be. The matter is adjourned to 14.09.2017 for passing formal order to appoint Interim Resolution Professional with further directions. - CP NO. 209/2016 And RT CP (IB) NO. 58/CHD./2017 - Dated:- 4-9-2017 - MR. R.P. NAGRATH, J. For The Petitioner : Yash Pal Gupta, Adv. For The Respondent : Prateek Gupta, Adv. ORDER The company petition was filed .....

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nsferred to the Tribunal. Relevant portion of rule 5 of these Rules as amended vide notification dated 29.06.2017 reads as under: 5. Transfer of Pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up of a company under clause (e) of Section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and, where the petition has not been served on the respondent under rule 26 of the Companies (Court) Rules, 1 .....

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ed insolvency professional to the Tribunal upto 15th day of July, 2017 failing which the petition shall stand abated: Provided further that any party or parties to the petitions shall, after the 15th day of July, 2017, be eligible to file fresh applications under sections 7 or 8 or 9 of the Code, as the case may be, in accordance with the provisions of the Code: Since the petition was to be treated as a petition under Sections 7, 8 or 9 of the Insolvency and Bankruptcy Code, 2016 (for short to b .....

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ated that the Respondent-Corporate Debtor has now shifted its registered office to House No. 1317, First Floor, Sector 18-C, Chandigarh- 160018 on 15.02.2017 as per the master data available with Ministry of Corporate Affairs Website. The copy of the master data of the company is Annexure at A-1. The master data provides for the particulars of the address, CIN number allotted to the company, name of its Directors/authorised signatories. It is admitted by learned counsel for the parties that the .....

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tition before the Hon'ble High Court on the basis of the resolution of the Board of Directors Annexure P-1 attached with the record of the Hon'ble High Court in the company petition. The petitioner has named Harish Taneja as the Interim Resolution Professional (IRP) with registration No. IBBI/IPA-002/IP-N00088/2017-18/10229, in order to comply with the requirement of clause (b) of sub-section (3) of Section 7 of the Code. The proposed IRP has also been given the written communication in .....

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d by two of the Directors of the respondent. On the last page of balance sheet, Annexure P-4, contains the detail of the unsecured loans/advances as on 05.12.2013 signed by two of the Directors of the respondent company. One of the person mentioned in this list of unsecured creditor is Visa Drugs & Pharmaceuticals Private Limited (the petitioner herein) for whom, an amount of ₹ 10,00,000/- was due. 5. The petitioner sent copy of this application to the respondent Corporate Debtor at bo .....

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the entire paper book filed in the Hon'ble High Court containing the necessary Annexures along with the said application. The petitioner was directed to despatch the copy of application along with the entire paper book of the petition, which was filed before the High Court containing documents/Annexures by registered/speed post and to file an affidavit stating the compliance. The affidavit dated 27.07.2017 of the Authorised Representative of the petitioner was filed stating that to comply wi .....

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opposing the prayer made in the instant petition. It is stated that there were in all 10 named shareholders of the Respondent-Corporate Debtor including M/s Golchha Markbuild Pvt. Ltd, Silver Ark Enterprises Pvt. Ltd. and Ashok Kumar Aggarwala etc. upto the year 2013. Those shareholders were in-charge of the respondent company. 8. On 18.02.2013 a Memorandum of Understanding (for short MOU) was entered into between the respondent company through its director Ashok Kumar Aggarwala on the one hand .....

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erms of the MOU dated 18.02.2013 the creditors of the respondent company including the petitioner are deemed to have paid their dues. In furtherance of the MOU, a share purchase agreement was executed on 06.12.2013 to reflect the final transfer of business to M/s Jupiter Strips Pvt. Ltd. The first party in this agreement are the erstwhile shareholders of the respondent and the amount of the creditors having been paid, the transfer of business was effected. That share purchase agreement is at Ann .....

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the same has been acted upon. The dues, if any, to the petitioner is stated to have been paid by virtue of MOU, dated 18.02.2013 and the share purchase agreement dated 06.12.2013. It was further stated that the amount having been advanced by the petitioner to the respondent on 10.12.2012, the petition filed in the Hon'ble High Court on 07.11.2016 was also barred by limitation. 11. It was further stated that the petitioner cannot rely upon the acknowledgement in the nature of balance sheet d .....

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y perused the record. 13. The petitioner has filed this application in the prescribed form as required by sub-rule (1) of rule 4 of the Rules and thus there is compliance of sub-section (2) of Section 7 of the Code. 14. Under sub-section (3) of Section 7 of the Code, the Financial Creditor is to furnish the following along with the application:- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the res .....

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nt maintained in the State Bank of India, which is part of Annexure P-3. The balance sheet Annexure P-4 also shows the name of the petitioner as one of the unsecured creditor to the tune of ₹ 10,00,000/- as on 5.12.2013. 16. Learned counsel for the respondent referred to paragraph 6 of the MOU, wherein the first party i.e. the then shareholders of respondent company agreed to pay all the existing liabilities towards the banks, secured and unsecured loans, all outsider creditors, creditors .....

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Strips Pvt. Ltd. as the second party and the Corporate Debtor M/s Swan Aluminiums Private Limited on 06.12.2013. This agreement clearly says that Authorised and paid up share capital of the respondent-company was ₹ 3 crores divided into 30,00,000 equity shares of ₹ 10/- each and the first party, held the 100% shareholding of the respondent. As per clause 2 of the agreement, Annexure R-3 at page 26 of reply, the sale price of 30,00,000 equity shares was determined at ₹ 1,40,42,9 .....

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% of the controlling interest in the company along with the business, land, building etc. 19. The learned counsel for petitioner, however, laid emphasis on clause 4 of the agreement, wherein the first party, namely; the then shareholders undertook that there was no other liability of the company at that time existing till 06.12.2013 except the unsecured loan of ₹ 1,81,00,000/- payable and that there was no other liability of the company. 20. The interpretation of the question basically has .....

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000/- (Rupees Six Crores and Twenty Four Lakhs Only) directly to the Bank. Once the old Management has resigned and the new management has taken-over and the names of new Directors is reflected on the website of Ministry of Corporate Affairs. This amount will be adjusted/deducted from the total sale consideration of ₹ 8,70,00,000/- (Rupees Eight Crore Seventy Lakh only). Further the First Party undertakes that there is no other Liability with any other Bank/financial institution. That the .....

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n any bank account in future also in the name of the COMPANY. The upto date Bank Statements of the Company as on 06.12.2013 is attached as Annexure IV. 21. Learned counsel for the petitioner, however, made the specific reference to clause 12 of the agreement at page 32 of the reply, wherein the first party i.e. the then shareholders of the Respondent- Corporate Debtor, to which the respondent is also a party, confirming the balance sheet as on 05.12.2013 to be true and correct, which, therefore, .....

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debt, which the respondent owed to him was paid. In view of the admission of the existing liability in the share purchase agreement, to which the respondent was also a party. Even the Jupiter Strips Pvt. Ltd., which is controlling the respondent now, was also a party to the agreement and, therefore, the learned counsel for respondent was unable to challenge the plea of the petitioner being a Financial Creditor . 23. In case, the other shareholders were liable to clear the dues of the other unsec .....

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ebt along with interest, if any, which is disbursed against the consideration for the time value of money and includes - (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contr .....

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te or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause. The definition of the te .....

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ompany in 2012, whereas the company petition was filed in November, 2016 before the Hon'ble High Court of Punjab and Haryana. The learned counsel for petitioner, however, contended that there is an acknowledgement of the outstanding amount of liability as shown in the balance sheet prepared upto 05.12.2013 and therefore, the petition, which was filed in November, 2016 before the Hon'ble High Court is within limitation. In the share purchase agreement dated 06.12.2013 Annexure R-2 the cor .....

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le to I & B Code. The Hon'ble Appellate Tribunal further held that the IB code, 2016 is not an Act for recovery of money claim, it relates to initiation of Corporate Insolvency Resolution Process. 27. In view of the above, the aforesaid contention, therefore, cannot be accepted. 28. Since there is a default committed by the respondent as proved from the aforesaid discussion and the application being complete in all respect, the resolution professional has also been proposed, the instant .....

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he proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub- section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. 29. In view of the above, the instant petition is admitted and the moratorium is declared for prohibiting all of the following as provided in section 14 .....

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