9911796707
TMI Blog2018 (5) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,00,00,000 Equity Shares of face value of Rs. 10 each and 50,00,00,000 Cumulative Redeemable Preference Share of face value Rs. 10 each. 2. Paid up Share Capital is Rs. 15,117,166,000 i.e., 1,049,000,000 Equity Shares of Rs. 10 each and 462,716,600 Cumulative Redeemable Preference Shares of Rs. 10 each." 1.1 At the outset, Learned Senior Advocate Mr. Janak Dwarkadas has explained the necessity of submission of this Application by the Corporate Debtor itself, to be declared as Insolvent, by referring 12th February 2018 Guidelines issued by Reserve Bank of India (RBI/2017-18/131) addressed to all Scheduled Commercial Banks and All India Financial Institutions. As per the Preamble of the said Guidelines, explanation tendered for issuance of the said Guidelines was that "The Reserve Bank of India has issued various instructions aimed at resolution of stressed assets in the economy, including introduction of certain specific schemes at different points of time. In view of the enactment of the Insolvency and Bankruptcy Code, 2016 (IBC), it has been decided to substitute the existing guidelines with a harmonised and simplified generic framework for resolution of stressed assets. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 is referred wherein the conditions for Admission of an Application under section 10 of The Code are specified. The observation is that the Adjudicating Authority, on hearing the Parties and on perusal of records, if satisfied, that there is a 'Debt' and there is a 'Default' occurred then has no option but to Admit the Application, unless the Application is incomplete. In one of the case of Unigreen Global (P.) Ltd. v. Punjab National Bank and others (Company Appeal (AT) (Insolvency 81/2017), Order dated 01 December, 2017, the verdict says that AA is bound to Admit Application and not to reject on the ground of unrelated facts. Facts beyond the requirement of the said Provision are not required to be pleaded. The restriction for Admission is also prescribed in Section 11 of The Code that certain persons are not entitled to make Application viz. (i) a Corporate Debtor undergoing a Corporate Insolvency Resolution Process or (ii) a Corporate Debtor in respect of whom a Liquidation Order has been made or (iii) a Corporate Debtor having completed Corporate Insolvency Resolution Process 12 months preceding the date of making of the Application. Since none of the above conditions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Application under section 10 of The Code. The Operational Creditor viz. GTL Infrastructure Limited has a huge amount to recover. That a Trade Liability is to be recovered from Aircel Limited. If the Application is admitted, then his right of recover shall get jeopardised. On admission the Financial Creditors shall constitute a Committee of Creditors and vote in their favour; instead of supporting the claim of this Operational Creditor. It is pleaded that this Petition do not deserve admission because the material fact about the pendency of High Court case has not been disclosed by the Petitioner, therefore, the Petition is malicious and defective due to non-filing of material facts. Further pleaded by Mr. Kamath that some time be granted because the Operational Creditor came to know about this Petition recently, rather only a day ago, hence has a right to respond and for that matter be adjourned for few days. 2.1 As per the columns of Form No.6 it is prescribed to furnish Particulars of Financial/Operational Debt (Creditor-wise) in Part-Ill. Accordingly, an Annexure is attached describing the Financial Creditors as under:- "Aircel/Cellular Limited Schedule of Secured Borrowi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e I&B Code, 2016 was enacted to consolidate and amend the laws relating to reorganization and Insolvency Resolution of Corporate persons, that too in a time bound manner, for maximization of value of assets of a Corporate Debtor. The purpose of CIRP is to promote entrepreneurship, side by side to balance the interest of all stakeholders. A Petition either filed under section 7, under section 9 or under section 10 is to be Admitted to achieve the said goal also to consider the objectives enshrined in the Preamble and the purpose for which this Code came into operation. 3.1 Although on the face of such a Petition it appears strange that why a Corporate Body itself is taking step to be declared Insolvent by moving an Application under section 10; but the answer is obvious that sometimes it becomes impossible to run the business due to pressing demand of recovery by the Creditors. It is to be made clear at this moment itself that Section 10 be not used or considered as a scapegoat for the defaulters, or that an exit route be made possible under the guise of Bankruptcy. The procedure of Section 10 is to be applied to facilitate the restructuring of the Stressed Assets as well as to reo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the said direction. As far as the Corporate Debtor's filing of this Petition is concerned, this is not a case that the fact about the Order of the Hon'ble Delhi Court was concealed. Learned Counsel of the Corporate Debtor has pointed out that a conscious decision was taken by the Corporate Debtor in good faith to file this Petition under section 10 keeping in mind the Order of the Hon'ble High Court so that the Corporate Debtor can invite Resolution Plan to overcome the stressed finances. A statement has also been made, worth mentioning, that no SARFAESI or such other recovery proceedings are pending so far against the Corporate Debtor. One more important aspect is worth to be noted is that the present step of the Corporate Debtor is not in contradiction of the observations of the Hon'ble Delhi High Court. In that case an argument of a Learned Counsel representing SBI before the Hon'ble Court was that restructuring of the Debt is a primary motive of Consortium of Bankers hence such a step is required to be taken hence Respondent is free to move an Application for modification of the impugned Order, which was also allowed by granting liberty to Bankers/SBI to take steps to exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all these problems. 5. Prima facie it has also been demonstrated that there is a scope of revival of the Company and also betterment in revenue generation. In the connected case of the Group (Aircel Limited) the Applicant has placed certain figures of revenue generation that in the month of December 2017 GSM revenue was Rs. 5811 Million which had gone down in the January 2018 to Rs. 5148 Million. However, ABS and other revenue was better from Rs. 574 Million to Rs. 640 Million. On the same lines, the Applicant has, therefore, expressed that under the supervision of experts and Judicial Body, the gross revenue generation shall be better in the months to come. In addition to the scope of increase in revenue generation, it has also been demonstrated that the Debtor Company has enough valuable assets to satisfy the major portion of the outstanding Debt. A provisional Assets and Liabilities drawn as on 20th February, 2018 of Aircel Cellular Limited is annexed which reflects that under the Head "Current Assets", Loans and Advances are to the tune of Rs. 2532,63,24,378/-. As against that the major Liability shown as Financial Borrowings to the tune of Rs. 665,64,50,687/-. 6. To conclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of sub-section (1) Section 14 shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator; (g) That the order of Moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves 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; (h) That the public announcement of the corporate insolvency resolution process shall be acted upon immediately as specified under section 13 of the Code. 9. DIRECTIONS TO IRP : That this Bench thus hereby appoints Mr. Vijaykumar V. Iyer, Registration No. IBBI/IPA-001/IP-P00261/2017-18/10490 as Interim Resolution Professional (IRP) to carry out the functions as mentioned under Insolvency & Bankruptcy Code. The so appointed IRP shall perform the duties as assigned under Section 18 and under section 15 of the Code. The IRP shall inform the progress of the Insolvency Proceedings and submit the report of the compliance of the directions of this Order within 30 days to this Bench. A liberty is gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
