TMI Blog2019 (3) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... efective in any manner. Application allowed. - CP (IB) NO. 344/KB/2018 - - - Dated:- 17-1-2019 - SHRI MADAN B. GOSAVI, MEMBER (J) For The Financial Creditor : R.C. Prusti and Ms. Manini Kabi Advocate For The Corporate Debtor : Reetobroto Mitra, Ayan Dutta and Pradip Kr. Sarawagi, Advocate ORDER Bank of India , Bally Bazar branch, District-Howrah, West Bengal -the Financial Creditor has filed this application under section 7 of the Insolvency Bankruptcy Code, 2016 (in short, I B Code) against N.K. Louha Udyog Pvt. Ltd. , having registered office at 6/2/B/1, Raj Krishna Kumar Street, Belur, District- Howrah - Corporate Debtor to start Corporate Insolvency Resolution Process (in short, CIRP ) of the Corporate Debtor as the Corporate Debtor is unable to pay the financial debt of ₹ 20,09,15,607/- (inclusive of interest). 2. The following facts are not in dispute: 2.1 On 02.09.2005, the Financial Creditor sanctioned certain credit facilities to the Corporate Debtor by way of loan. The Corporate Detor executed demand promissory note and various other documents in favour of the Financial Creditor having availed cash credit facility. In 2007, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aggregate value of those assets is three times more than the amount sought to be recovered from them. They have given a proposal for one-time settlement to the bank but it was rejected by the bank without assigning any reason. For all these reasons, this application/proceeding is not maintainable and the same may be rejected. 5. Financial Creditor filed rejoinder and also supplementary affidavit dated 01.12.2018. The Financial Creditor produced on record the balance confirmation letter dated 16.06.2017 executed by the corporate debtor. They also filed on record the corporate debtor's letter dated 22.02.2018 giving offer of one-time settlement and their letter of rejection of such offer. The Financial Creditor also produced on record valuation report to show that the value of the assets of the corporate debtor mortgaged with them is far less than the outstanding dues. 6. I have gone through the record and proceedings of this case. I heard the ld. Counsel, Mr. R.C. Prusti for the financial creditor and Ld. Counsel Mr. Reetobroto Mitra for the corporate debtor at length. 7. Ld. Counsel for the Corporate Debtor relied on the two rulings, i.e. (i) Asian Power Controls Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor pointed out the bank's pleadings in the proceeding before the D.R.T. It is mentioned that, the cause of action of this application arises firstly on 25.10.2005, when applicant bank sanctioned cash credit facility of ₹ 3 crores to defendant no 1 company. According to the Ld. Counsel, it shows that the proceeding is not filed within three years from the date of arising the cause of action. This proceeding is barred by limitation. The provisions of Law of Limitations are made applicable to the proceeding before this authority. As against this, the Ld. Counsel for the Financial Creditor brought to my notice number of letters written by the corporate debtor to the bank till 2018 acknowledging the debt. He submitted that this proceeding is filed well within limitation. 12. I considered the submissions of both the Ld. Counsels. It is to be noted that the Ld. Counsel for the corporate debtor did not read the entire pleadings in the application of the bank filed before the DRT. The bank stated in the same paragraph, instant application under section 19 has been filed within three years of the execution of balance confirmation letter of defendent no.1 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dictum of Lord Wrenbury in Food Controller v. Cork, 1923 AC 647(A). 16. Here in this case, firstly, this proceeding is not relating to winding up of the corporate debtor. It is for the resolution of its insolvency. This proceeding is filed rather to save the corporate debtor from going on liquidation and thereafter resulting to the winding up. So, on facts, rulings are not applicable. Secondly, the properties mortgaged with the financial creditor are not assets of the corporate debtor but they are the assets of the promoters of the corporate debtor mortgaged with the bank as collateral securities. This proceeding is not against those promoters although they may be the directors of the corporate director. Thirdly, the financial creditor filed on record valuation report to show the value of those properties. It is far less than the debt amount. Hence, the rulings are not applicable to the facts of this proceeding. 17. The Financial Creditor has proposed the name of Mr. Surya Kanta Satapathy (Mob. No. 09337223514, 0789441233) of 4, Lake Gardens, Near Yuvak Sangha, Kolkata- 700 045 having Email id: suryakantasatapathy@yahoo.co.in and registration no.lBBI/IPA-001/IP-P00598/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vi) The order of moratorium shall affect the date of admission till the completion of the Corporate Insolvency Resolution Process. vii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Sec.31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. viii) Necessary public announcement as per Sec.15 of the IBC, 2016 may be made by the resolution professional upon receipt of the copy of this order. ix) As per the proposal by the Financial Creditor for the appointment of Interim Resolution Professional (IRP), Mr. Surya Kanta Satapathy (Mob. No. 09337223514, 0789441233) of 4, Lake Gardens, Near Yuvak Sangha, Kolkata- 700 045 having Email id: suryakantasatapathy@yahoo.co.in and registration no. IBBI/IPA-001/IP-P00598/2017-18/11050 is appointed as the Interim Resolution Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
