9911796707
TMI Blog2018 (8) TMI 1892X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor. 3. This petition is presented u/s.10 of the IB Code with a request to trigger Corporate Insolvency Resolution Process in respect of Supraja Textiles Private Limited, hereinafter called as 'the Corporate Debtor'. 4. The Corporate Debtor is having Financial Creditors, Operational Creditors besides Statutory Dues. 5. The Corporate Debtor has committed default in payment of Rs. 16,13,67,283/-. According to the Corporate Applicant, the date of default is 28.12.2016. 6. The Corporate Applicant filed the following documents to prove the existence of default and the amount in default:- a) Copy of Form No. 8 dated 17.04.2006 for creation of Charge for Rs. 12.36 Cr. as filed with the Registrar of companies, Andhra Pradesh. b) Copy of Form No. 8 dated 03.01.2007 for creation of Charge for Rs. 15.44 Cr. as filed with the Registrar of Companies, Andhra Pradesh. c) Copy of the Certificate of Registration of Charge for creation of charge dated 03.01.2007 for Rs. 15.44 Cr. issued by The Registrar of Companies, Andhra Pradesh. d) Copy of Form No.8 dated 23.03.2008 for creation of Charge for Rs. 23.72 Cr. as filed with the Registrar of Companies, Andhra Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, SAM Branch, Hyderabad approving One Time Settlement of Rs. 12,09,87,013/- to the Corporate Debtor. u) Copy of letter No. SAMB/HYD-II/LRS/18 dated April 02, 2018 of State Bank of India, SAM Branch, Hyderabad intimating cancellation of One Time Settlement to the Corporate Debtor. v) Copy of letter dated April 16, 2018 issued by State Bank of India, SAM Branch, Hyderabad intimating publication of e-auction sales notice dated April 13, 2018 & April 14, 2018 on fixing the date for sale of secured assets through e-auction on May 23, 2018. w) Copies of e-auction notice published in New Indian Express, Vijayawada Edition on April 14, 2018. x) Copies of e-auction notice published in New Indian Express, Hyderabad Edition on April 14, 2018. 7. The Corporate Debtor proposed the name of Mr. Manivannan J, Insolvency Professional, for appointment as Interim Resolution Professional. 8. The Corporate Applicant filed written communication, dated 02.05.2018, given by Mr. Manivannan J, proposed IRP in Form-2. 9. The Corporate Applicant filed Audited Financial Statements for the year ended 31.03.2017 and for the year ended 31.03.2016. The Corporate Applicant also filed statement of af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings under SARFAESI Act. 22. It is stated by SBI that this petition is filed with a mala fide intention but not to have a Resolution Plan or for Revival of the Company. 23. Mr. Guntupalli Srinivasa Rao, who is holding 48% of the voting rights in the Corporate Debtor, filed reply, raising the following objections:- i) The management ought to have taken prior written consent of all the parties to the MOU, dated 23.12.2013, before filing this petition. ii) On account of the financial irregularities and misappropriations, committed by the present management, Guntupalli Srinivasa Rao and others moved a petition before the CLB, Chennai Bench. iii) The management of the Corporate Debtor fraudulently altered the Board of the Company by removing Mr. Guntupalli Srinivasa Rao from the Directorship, passed the resolution to file this petition. 24. Mr. Guntupalli Srinivasa Rao also stated that he is one of the Financial Creditors' of the Corproate Debtor besides 48% shareholding in the Corporate Debtor Company. 25. In the surrejoinder/written arguments Mr. G. Srinivasa Rao took a plea that in view of Sec. l0(3)(c), as amended, Special Resolution passed by the shareholders of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to force with effect from 06.06.2018, by virtue of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018. 32. The material on record further discloses the existence of debt and occurrence of default. The Corporate Applicant also proposed the name of the Insolvency Professional to act as IRP and filed his written communication in Form-2. 33. The contention raised by the SBI is that this petition is a mala fide petition to prevent the proceedings under the SARFAESI Act. 34. It is settled that the pendency of any other proceeding for recovery of amount in default from the Corporate Debtor is no bar for initiation of Corporate Insolvency Resolution Process. 35. The proceedings under the IB Code are having overriding effect over all other proceedings under other Acts in view of Sec. 238 of the IB Code, more so, when there is no repugnancy between the IB Code and the SARFAESI Act. Innoventive Industries Ltd. v. ICICI Bank Ltd. decided by Hon'ble Supreme Court in Civil Appeals 8337-8338 of 2017 on 31.08.2017 is the law laid down by Hon'ble Supreme Court on the point. 36. The main point involved in this petition is whether the Special Resolution passed by the sharehol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the Hon'ble Supreme Court that if an Application is filed u/s.34 prior to 23.10.2015, the amended Sec.36 is not applicable. If an application is filed u/s.34 on or after 23.10.2015, amended Sec.36 is applicable even though Arbitral proceedings commenced prior to 23.10.2015. 46. The Hon'ble Supreme Court further held that the amended provisions of Sec.36 should apply even if an application u/s.34 of Arbitration Act has been filed before the Arbitration Act was amended. 47. The Hon'ble Supreme Court and the Hon'ble Bombay High Court made a distinction between the vested right and existing right and further made bifurcation between arbitrate proceedings and court proceedings. 48. Prior to the amendment of Arbitration and Conciliation Act, there was an existing right to have a stay as soon as the Award is challenged u/s.34 of the Arbitration and Conciliation Act. As per the amended Sec. 36 of the Arbitration Act such existing right has been taken away. 49. Therefore, the Hon'ble Supreme Court and the Hon'ble Bombay High Court held that amended Sec. 36 is applicable to the Applications filed u/s.34 of the Arbitration and Conciliation Act on or after 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given retrospective effect. 61. In that judgment, the Hon'ble Supreme Court held even if a statute does not contain a statement to the effect that the amendment is clarificatory or declaratory that it is not the end of the matter and the Court is to analyse the post or pre scheme of the statute and nature of the amendment. 62. In that judgment, the Hon'ble Supreme Court considered the aspect of imposing of penalty for concealment of negative income or loan and held it is clarificatory in nature but not substantial. 63. But, in the instant case, a condition, which is not there prior to the amendment of Sec. l0(3)(c) of the IB Code, has been introduced by the legislature by way of an Ordinance for the first time with effect from 06.06.2018, such burdensome condition, in my view, cannot be given retrospective operation. 64. There is no provision in the Companies Act which says that a Special Resolution is necessary to sue. A resolution passed by the Board of Directors of the Company is sufficient to sue any person or legal entity except for the purpose of filing winding up petition u/s.271 of the Companies Act, 2013. 65. The requirement of special resolution is introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the matter in this case the petitioner need not be called upon to file a special resolution passed by the shareholders of the Company in order to admit this petition if it is otherwise complete. 72. In view of the above discussion there are no grounds to reject this petition. 73. This petition deserves to be admitted and accordingly it is admitted. 74. This Adjudicating Authority is appointing the Insolvency Professional, Mr.Manivannan J, Plot No. 53B, 8/330, Vishalakshi Nagar, Fourth Cross Street, Santhosapuram, Chennai-600 073, Tamil Nadu. Email address: [email protected] REGN. NO. IBBI/IPA-002/IP-N00534/2017-2018/11695 as Interim Resolution Professional u/sec. 13(l)(b) of the code. 75. Section 13 of the Code says that after admission of the application under Section 9, the Adjudicating Authority shall pass an order declaring moratorium for the purposes referred to in Section 14. Therefore, in view of the commencement of Corporate Insolvency Resolution Process with the admission of this Petition and appointment of the Interim Resolution Professional, this Adjudicating Authority hereby passes the order declaring moratorium under Section 13(1)(a) prohibiting the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
