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TMI Blog2019 (1) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 (for short to be referred hereinafter as the 'Code'). The Corporate Debtor falls within the definition of the term 'Corporate Applicant' as defined in sub-section (5) of Section 5 of the Code. 2. The Corporate Debtor was incorporated on 10.06.2011 having been allotted CIN U50100HP2011PTC031682 and its registered office is at Una, in the State of Himachal Pradesh and therefore, the mater falls within the territorial jurisdiction of this Tribunal. The Memorandum and Articles of Association are at Annexure VII and copy of master data is at page 171 of the petition. 3. The authorised share capital of the Corporate Debtor is Rs.3,00,00,000 (Rupees Three Crore only) and issued subscribed and paidup capital is also Rs.3,00,00,000 (Rupees Three Crore only). 4. The Petition has been filed by the corporate debtor through Mr. Tushar Sharma, its Director who has been authorised to file a petition under the Code vide board resolution dated 14.04.2018 as at page No.173 of the paper book. The contents of the application are supported by the affidavit of Mr. Tushar Sharma which is Annexure VIII (page No.159A-169) of the paper book and at page 15F of the Amended Form No.6. 5. As per Memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acility Sanctioned Amount Outstanding as on 31.03.2018 1 T erm Loan (Vehicle) 30,11,993 13,46,404 Kangra Central Cooperative Bank Ltd, Una Sr. No. Nature and Description of Credit Facility Sanctioned Amount Outstanding as on 31.03.2018 1 Term Loan 1600000 425972 Kangra Central Cooperative Bank Ltd Govt College, Una Sr. No. Nature and Description of Credit Facility Sanctioned Amount Outstanding as on 31.03.2018 1 Term Loan (Vehicle) 600000 367144 Vinayak Construction Co. Sr. No. Nature and Description of Credit Facility Sanctioned Amount Outstanding as on 31.03.2018 1 Term Loan 1,52,00,000 1,52,00,000 8. When the matter was listed on 23.05.2018, it was contended on behalf of the petitioner-corporate debtor that as per the statement of affairs of the Company till 10.05.2018 Annexure VI-A, the total of equity and liabilities was tallying with the total of the assets. The petitioner was directed to furnish the total thereof within a week. The petitioner-corporate applicant filed an affidavit of Mr. Tushar Sharma, Director by diary No.1834 dated 28.05.2018 by attaching statement of affairs containing the clubbing as per directions of this Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny disciplinary proceeding is pending against the proposed resolution professional). Provided that Adjudicating Authority shall, before rejecting an application, give a notice to the applicant to rectify the defects in his application within seven days from the date of receipt of such notice from the Adjudicating Authority." 14. The defects in applications as pointed out on various dates stand removed as already discussed. So we hold the application to be complete in all respects. 15. Sub-Section (3) of Section 10 of the Code reads as under:- "The corporate applicant shall, along with the application furnish - (a) the information relating to its books of account and such other documents for such period as may be specified; (b) the information relating to the resolution professional proposed to be appointed as an interim resolution professional; and (c) the special resolution passed by shareholders of the corporate debtor or the resolution passed by at least threefourth of the total number of partners of the corporate debtor, as the case may be, approving filing of the application." 16. In order to comply with the requirement of clause (a) of Section 10(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its approval for filing application under Section 10 of the I&B Code, 2016. 19. When the matter was listed on 29.08.2018 the following order was passed:- "Having heard the learned counsel for the petitioner, we find that the petitioner has not attached copy of the resolution of Extraordinary General Meeting (EOGM) deciding to initiate the proceedings under Section 10 of the Insolvency and Bankruptcy Code, 2016. The learned counsel submits that the resolution was passed in April, 2018 but the same was not made part of the record, though the notice of the EOGM along with the requisite documents were placed on record. List the matter on 13.09.2018. The resolution of the EOGM along with supporting affidavit be filed at least seven days before the date fixed with copy advance to the counsel opposite...." 20. The petitioner has filed copy of the special resolution dated 07.04.2018 passed in the Extra Ordinary General Meeting of shareholders of the Corporate Debtor resolving to initiate the Corporate Insolvency Resolution Process under Section 10 of the Code. This resolution was filed by way of Company application CA No.382 filed by diary no.3348 dated 06.09.2018. It is noted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 31.03.2017 280,449,858 31.03.2016 250,006,606 II. Accumulated Profit/Loss of the Corporate Debtor: Period Accumulated Profit/(loss) of the Corporate Debtor 10.05.2018 -66,422,240 31.03.2018 -65,600,563 31.03.2017 20,729,712 31.03.2016 18,073,257 III. Long Term borrowing & other Liabilities: Period Long Term borrowing & other liabilities 10.05.2018 18,522,770 31.03.2018 18,522,770 31.03.2017 31,502,577 31.03.2016 30,533,286 IV. Current Liabilities: Period Current Liabilities 10.05.2018 89,245,535 31.03.2018 89,441,068 31.03.2017 81,954,585 31.03.2016 93,481,654 25. The figures extracted above indicate complete loss of net worth of the corporate debtor. It is clear from the above that the corporate debtor has failed to pay its debt and has thus committed default. In fact the learned counsel for the financial creditor has not raised any objection to the admission of the petition in view of the default committed by the petitioner-corporate debtor, nor any reply to the petition was filed. It clearly seems that the corporate debtor has fallen into debt trap and thus competent to set in motion the insolvency resolution process under the Code t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t with the Interim Resolution Professional and the officers and the managers of the 'Corporate Debtor' shall report to the Interim Resolution Professional, who shall be enjoined to exercise all the powers as are vested with Interim Resolution Professional and strictly perform all the duties as are enjoined on the Interim Resolution Professional under Section 18 and other relevant provisions of the 'Code', including taking control and custody of the assets over which the 'Corporate Debtor' has ownership rights recorded in the balance sheet of the 'Corporate Debtor' etc. as provided in Section 18 (1) (f) of the 'Code'. The Interim Resolution Professional is directed to prepare a complete list of inventory of assets of the 'Corporate Debtor'; (iii) The Interim Resolution Professional shall strictly act in accordance with the 'Code', all the rules framed thereunder by the Board or the Central Government and in accordance with the 'Code of Conduct' governing his profession and as an Insolvency Professional with high standards of ethics and moral; (iv) The Interim Resolution Professional shall cause a public announcement within three days as contemplated under Regulation 6 of the Ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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