TMI Blog2018 (1) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... /KB/2017 - - - Dated:- 22-12-2017 - MR. V. P. SINGH AND MR. JINAN K. R., JJ. For The for the Appearing Partie : Ratnanko Banerjee, Sr. Adv., Soorjya Ganguli, Ms. Pooja Chakrabarti, Somdutta Bhattacharyya, Ms. Urmila Chakraborty, Ritoban Sarkar, Kamal Toshniwal, A.K. Singh, Md. Minhajuddin, G. Pachisia, Akhilesh Kumar Shrivastava and Shakeel Mohammed Akhter, Advs. ORDER V.P. Singh, Member (J.) Petitioner has filed this petition under section 10 (1) of Insolvency Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process (from now on referred as CIRP). Relying on the Board Resolution dated 3rd July, 2017 Shri Suresh Padmanabhan, Deputy Chief Financial Officer, Tayo Rolls Ltd. has presented this petition under section 10 by which the Corporate Applicant was authorised to initiate the Corporate Insolvency Resolution Process. Board Resolution is added to the petition as Annexure-VII. It is stated in Part III of the application that corporate applicant, i.e. corporate debtor has defaulted all amounts currently due and payable to its non-related party Financial Creditors towards its repayment obligations except the penal interest of a to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from non-related financial creditors Annexure-I, Exhibit-B; all documents relating to operational debt listed in serial No.8 of Part III of the application Annexure-II; details of operational creditor of the Corporate Debtor and their addresses, Annexure-II Exhibit-A; details of proceedings before Labour Court, Annexure-II Exhibit-B; entries from books of account from the Corporate Debtor, Annexure-II, Exhibit-C, written communication from the proposed I.R.P. in Form 2, Annexure-III; copy of relevant books of account from Corporate Debtor evidencing the default to creditors Annexure-IV; copies of audited financial statement of the Corporate Debtor for the last two financial years Annexure-V; condensed unaudited financial statement of the Corporate Debtor up to 30th June, 2017 evidencing the default to its creditor, Annexure-IV; statement of affairs of the Corporate Debtor Annexure-VI; list of Corporate Debtor s assets and liabilities with estimated value assigned to each category Annexure VI, Exhibit-A; property on which claim against the Corporate Debtor is wholly or partly secured with details of debt when security was created Annexure-VI, Exhibit-B; certificate of Registration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sick Industrial Companies (Special Provision) Act, 1995 (hereinafter referred as SICA). Such reference was made by the Corporate Debtor on February 29, 2016, which was registered on 23rd March, 2016 as case No.48 of 2016. The Reference before BIFR was last heard on November 24, 2016. However, SICA has been repealed w.e.f. 1st December, 2016 vide government Notification dated 28th November, 2016 and all the References or Enquiries pending before the BIFR and AAIFR had abated. Therefore, the Corporate Applicant has approached this Tribunal for admission of the application and seeking among other things for initiation of CIRP about Corporate Debtor under the new framework of laws. Ld. Counsel for the Corporate Applicant has raised the argument that Hon ble NCLAT in case of Leo Duct Engg. Consultants Ltd. v. Canara Bank Co. Appeal 100 of 2017 has held that: 21. In an application under section 10, the Financial Creditor or the Operational Creditor may dispute that there is no default or that the debt is not due and is not payable by law or fact. They may also oppose admission on the ground that Corporate Applicant is not eligible to make application given ineligibility under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 28th November, 2016 and all the References and Enquiries pending before the BIFR and AAIFR have abated. Therefore, the Corporate Applicant has approached this Tribunal for admission of the application for initiation of Corporate Insolvency Resolution Process under section 10. It is important to reproduce the amended section 4, sub-clause (b) of the Sick Industrial Companies (Special Provisions) Repeal Act, 2003, which is as follows: In section 4, sub-clause (b), the following sub-clause shall be substituted, namely: on such date as may be notified by the Central Government in this behalf, any appeal preferred to Appellate Authority or any Reference made or Enquiry pending to or before the Board or any proceeding of whatever in nature pending before the Appellate Authority or the Board under the Sick Industrial Companies (Special Provision) Act 1985 (1 of 1986) shall stand abated; Provided that a company in respect of which such Appeal or Reference or Enquiry stands abated under this clause may make reference to the National Company Law Tribunal under the Insolvency Bankruptcy Code, 2016 within 180 days (one hundred and eighty days) from the date of commencement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore NCLT within 180 days, i.e. the statutory time limit provided in proviso to section 4(b) of the SICA Repeal Act, 2003 which came into effect w.e.f. 28.05.2016. Admittedly, this petition has been filed after expiry of 180 days, and Corporate Applicant had not stated anything about the abatement of Reference on account of Government Notification dated 28.5.2016. It is important to point out that Hon ble NCLAT in case of Leo Duct Engg. Consultants (supra) had laid down the conditions for admitting the petition under section 10 of the IB. Code but fact of this case shows that Corporate Debtor had filed the petition under section 10 of the IB Code after abatement of the Reference before the BIFR, which got abated on account of Government Notification dated 28.05.2016. After coming into force of the Insolvency Bankruptcy Code came by implication of statutory proviso to section 4(b) of the Sick Industrial Companies (Special Provision) Repeal Act, 2003 and after abatement of the reference before BIFR, liberty was given to file proceeding before NCLT within 180 days from the date of commencement of Insolvency Bankruptcy Code, 2016. Insolvency Bankruptcy Code came into effe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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