TMI Blog2019 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor ) under Section 7 of the IBC, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, by inter alia seeking to initiate Corporate Insolvency Resolution Process (CIRP) in respect of M/s. C L N Properties Private Limited ( Respondent/Corporate Debtor ) on the ground that the Corporate Debtor committed default for a total outstanding amount of ₹ 15,00,00,000/- (Rupees Fifteen Crores Only) plus 14% interest from 01.10.2015 till the date of repayment, by not redeeming Non-Cumulative Non-Convertible Redeemable Preference Shares ( NCRPS ) during the agreed time period. 2. Brief facts of the case, as mentioned in the Company Petition, are as follows: (1) M/s. Shan Global Manufacturing and Trading Private Limited ( Petitioner/Financial Creditor ) is a Private Limited Company incorporated on 08.02.2008 under the provisions of Companies Act, 1956 with CIN: U29253KA2008PTC045229 and having its registered office at No.2005, Anand Bhavan - II Floor, 100 Feet Road, Indiranagar, HAL II Stage, Bangalore-560038 and has changed its name from Shan Technology Services Private Limited to Shan Global M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent Company to redeem the preference shares after 30.09.2015 which would in turn make such preference shares irredeemable which a Company limited by Shares is not allowed to issue as per Section 55 of the Companies Act, 2013 (Act). (6) It is stated that no attempt was made by the Respondent Company to redeem the NCRPS and accordingly, after the date of redemption, the Applicant requested the Respondent Company to redeem the same through oral and written correspondences, to which the Respondent Company have deliberately not responded to any of these correspondences. (7) As the Respondent Company has in no way treated such investment as Preference Shares by complying with the provisions of Section 55 of the Act as well as the terms of the SSA, the amounts advanced may only be treated as debt legally owed to the Applicant, thereby making the Applicant a Financial Creditor. The Respondent Company cannot claim protection of Section 55 of the Act when it has itself not complied with the provisions contained therein. (8) Further, Rule 9(6) of the Companies (Share Capital and Debenture) Rules, 2014 states that a Company may, if so a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limine. (2) It is stated that a plain reading of the Application and the documents produced along with the same, evidences that the Application has been filed by a Company named Shan Global Manufacturing and Trading Private Limited. However, all the alleged transaction-related documents, including the Share Subscription Agreement dated 29.01.2010, and the purported letter of understanding dated 01.10.2009 produced by the Applicant reflects the name of the transacting party as Shan Technology Services Private Limited. It is stated that no pleadings have been made and no documents have been produced to evidence the relationship between Shan Global Manufacturing and Trading Private Limited and Shan Technology Services Private Limited, and on this ground alone, the Application deserves to be dismissed in limine. (3) It is further stated that the present application is barred by limitation and is hence not maintainable. It is stated that the Applicant has not enforced its rights and remedies within the time prescribed under law, as a result of which, its rights and remedies are no longer enforceable. It is stated that the present application suffers fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h attempt shall continue for not more than 45 (Forty Five) days, gives notice thereof to the other Party in writing. 10.2 All disputes, controversies and differences of opinion arising out of or in connection with this Agreement or for the breach hereof which can not be settled amicably by the Parties hereto shall be settled by arbitration in accordance with the (Indian) Arbitration and Conciliation Act, 1996 by a sole arbitrator to be appointed by the Company. The Company shall, within 14 (Fourteen) days of receiving a notice from the other Party in accordance with Clause 10.1 above, appoint the arbitrator and shall intimate the same to the other Party. For the purposes of clarity, the Investor agrees that it shall not raise objections to the appointment of any such arbitrator and will make itself available for the arbitration proceedings to be conducted by the arbitrator in order to enable the arbitrator to resolve the dispute. In the event the Company fails to appoint an arbitrator within the time frames specified in this clause, any other Party shall be entitled to make an application to the relevant court (i.e. Bangalore) in accordance with the Arbitration and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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