TMI Blog2019 (1) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to ensure maximum value of assets which is in the interest of all the stakeholders. The petition is admitted. - CP (IB) No.130/CHD/HP/2018 - - - Dated:- 10-12-2018 - Mr. R.P.Nagrath, Member (Judicial) And Mr. Pradeep R. Sethi, Member (Technical) For The For the Applicant/Corporate Debtor : Mr. Ashok Malik, Advocate, Mr. Nitin Kant Setia, Advocate And Ms. Saloni, Advocate For The For State Bank of India, Financial Creditor : Mr. Rakesh Gupta, Advocate, Mr. Puneet Jain, Advocate Mr. Yogesh Kumar, Advocate For The Daimler Financial Services : Mr. Rahul Katoch, Advocate For The Vinayak Construction Co. : Mr. Deepankur Sharma, Advocate JUDGEMENT (Oral) Per: R.P. Nagrath, Member(Judicial) This petition has been filed by M/s Bhagat Ram Motor Ways Private Limited ( BRMWPL ) i.e. the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayak Construction Co.. In Amended Form No.6 filed by Diary No.3096 dated 21.08.2018, the complete particulars, including addresses of the financial and operational creditors have been given. It is further stated that due to closure of operations of General Motors Pvt. Ltd. in India and due to general business slowdown and increasing operational cost the applicant Corporate Debtor started incurring business loss and the products held in inventory became un-saleable. 7. The financial status of Corporate Debtor in respect of the financial creditor is narrated as below: SBI SME Branch Mehatpur Main Bazar Mehatpur Distt. Una HP Sr. No. Nature and Description of Credit Facility Sanctioned Amount Outstanding as on 26.02.2018 as per demand notice u/s 13(2) 1 Term Loan 3,00,00,000 1,25,20,111 2 Cash Credit Limit 7,00,00,000 6,22,66,741 Total 74,786,852 SBI Una Distt. Una HP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 Tribunal with separate totals of assets and liability/equity as at Annexure-XI with this affidavit. 9. Notice of this petition was directed to be issued to all the financial creditors. Mr. Rakesh Gupta, Advocate filed Power of Attorney on behalf of SBI; Mr. Anil Sharma, Advocate on behalf of the Kangra Central Co-operative Bank Pvt. Ltd.; Mr. Vipul Dharmani, Advocate on behalf of HDB Financial Services Ltd. and Daimler Financial Services India Pvt. Ltd. 10. When the matter was listed on 13.07.2018, certain more defects were noticed and the following order was passed: Having heard the learned counsel for the petitioner, we find that the petitioner has not filed copies of the invoices in respect of the operational creditors as per Annexure II of Instructions in Form 6 as pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code the petitioner has placed on record all the necessary documents to prove the existence of financial/operational debt and the amount as required in column 3 of Part-III of the Application Form. Copy of demand notice issued by the Financial Creditor i.e. SBI u/s 13(2) and 13(4) of the SARFAESI Act, 2002 are at Annexure I(C) and I(D) respectively. The details of the operational debt in default have also been provided. The petitioner has also filed its audited financial statements for the years 2016-17 and 2017-18 as at Annexure V (colly) and the provisional financial statements upto 10.05.2018 which is part of Annexure V (colly). As per instruction, Annexure V of prescribed Form No.6, the provisional financial statements upto a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 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 the resolution that there has arisen the financial crisis in the Company as Restructuring proposal of the company has been declined by the lenders. 21. It is pertinent to mention that in Column No.8 of Part-II of the Application Form, the petitioner had already relied upon the documents relating to holding of Extra Ordinary General Meeting on 07.04.2018 (Annexure VII). However, the document (Annexure VII) on record was notice of EOGM proposed for 07.04.2018 as at Page 157 of the paper book along with the explanatory statement pursuant to the provision of Section 102 of the Companies Act, 2013 as at Page 159 of the paper book, but the resolution of EOGM was not attached. In fact Mr. Tushar Sharma, in his affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment, the powers of the Board of Directors shall stand suspended and the management of the affairs shall vest 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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