TMI Blog2020 (7) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... osals after the application is filed before the Adjudicating Authority on August 21, 2018. Charges filed in the Registrar of Companies has not been satisfied; Copy of the application filed before the Tribunal has been sent to the corporate debtor and the application filed by the petitioner-bank under section 7 of the IBC is found to be complete for the purpose of initiation of the corporate insolvency resolution process against the corporate debtor. Application admitted. - C. P. (I. B.) No. 421/7/NCLT/AHM/2018. - - - Dated:- 3-1-2020 - Harihar Prakash Chaturvedi (Judicial Member) And Prasanta Kumar Mohanty (Technical Member) For the Applicant/Financial Creditor : Gaurav Maharshi and Rohit Lalwani For the Respondent/Corporate Debtor : Akshat Agrawal ORDER PRASANTA KUMAR MOHANTY (TECHNICAL MEMBER). - 1. The present I. B. petition is filed by the financial creditor-Bank of Baroda (erstwhile Dena Bank) under section 7 of the Insolvency and Bankruptcy Code, 2016 (here-in-after referred to as a Code ), seeking initiation of the corporate insolvency resolution process ( CIRP in short) against the corporate debtor company namely, Pithampur Poly Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. It is stated that the corporate debtor has been engaged in the manufacturing of PP/SDP woven sacks, Jumbo Bags Box Bags, etc., since 1994. It has its factory at Industrial Plot No. 115 situated in sector-3 Industrial area Pithampur in District Dhar (MP), which is also the company's registered office. The company was promoted by Shri S. N. Kabra, Shri Ashish Shekar and others and commercial production of the unit was scheduled to commence from April 1995 but due to delay in supply and installation of machinery the production could not start from December, 1995. At this stage in November, 1995 Shri R. K. Tekriwal took over the entire project and the unit could not turn the corner and loss was increased. To overcome the imbalances and to make the plant capable of producing fabric of a higher width, the company finalized a modernization-cum-expansion plant and bank has sanctioned the credit facilities. 6. It is submitted that the respondent-company applied for various term loan and cash credit facilities and the applicant-bank sanctioned term loans of ₹ 7,01,49,000 cash credit limit of ₹ 4,34,00,000 in various dated from November 27, 1994 to June 23, 1997 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22, 1997. (Page Nos. 50-51 of paper book) (vi) Copy of the order of the Debts Recovery Tribunal. (Page Nos. 52 to 63 of paper book) (vii) Copy of the sanction letter dated November 27, 1994. (Page Nos. 64 to 97 of paper book) (viii) CIBIL report dated June 18, 2018 wherein overdue amount from the corporate debtor towards the applicant-bank has been reported. (Page Nos. 98 to 119 of paper book) (ix) Copy of the bank statements of the Pithampur Poly Products Ltd. from April 1, 2008 to July 25, 2018. (Page Nos. 120 to 126 of paper book) (x) Copy of the certificate under section 24(a) and 24(b) of the Bank ers' Books Evidence Act, 1891 dated June 18, 2018. (Page No. 127 of paper book) 12. In the present matter, this Tribunal, vide its order dated September 11, 2018 had directed the petitioner-bank to serve the notice of date of hearing to the corporate debtor and file the proof of service of notice before this Tribunal. Thereafter, the respondent, corporate debtor appeared before this Tribunal on October 29, 2018 and sought time to file objections within two weeks. 13. The learned lawyer of the applicant-bank (FC) clarified their positions and put forth their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven final shape by the banking authorities. A perusal of correspondence between corporate debtor and the financial creditor would go to show that the proposal is under consideration and is at last stage of completion. 15.3 The Fairdeal Marwar Garages Ltd. in its one-time settlement offer letter dated February 14, 2019 submits final non-negotiable offer of ₹ 1.75 crores for one-time settlement of the loan accounts with the conditions that : (a) All the charges of the bank in the RoC records over the assets of the company shall stand vacated and the mortgage documents including the original chain documents of the properties mortgaged with the bank for the said loan accounts shall be returned back to them. (b) The cases against the company and its promoters on various forums including the petition filed under the IBC with the National Company Law Tribunal Bench, Ahmedabad, shall be withdrawn with immediate effect. (c) The bank shall issue a No dues certificated on payment of the amount as above within 2 days of making the payments. (d) The bank shall release the primary as well as collateral security with immediate effect. (e) The bank shall release the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application is liable to be dismissed for want of document/agreements to show borrowing by the respondent-corporate debtor. The copy of relevant account from the bank is not as per the Bankers' Books Evidence Act, 1891. The affidavit in support of the application not admissible for want of completeness and correctness. Certificate under rule 9(2) from the proposed insolvency professional cannot be relied upon. The mandatory instructions under Form 5 have been violated. The applicant-bank induced and lured the corporate debtor to take over their bad account with mala fide intentions to extract money without intention to support the business and subsequently back tracked. In view of the submissions made hereinabove the application filed by the applicant under section 7 of the IBC deserves to be and may kindly be dismissed. 17. The applicant submitted their written submission on December 5, 2019. It is stated that till the time the applicant could take any appropriate action for recovery of the dues, the corporate debtor had approached the hon'ble High Court of Madhya Pradesh at Indore Bench by filing a Writ Petition No. 5330 of 2013. An interim order was passed by the hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and there has been a continuous cause of action which gives rise to the claim of debt by the applicant against the corporate debtor. 17.8 It is submitted that it is imperative to note that there has been a continuous wrong on the part of the respondent when they refused to pay the admitted debt and instead kept on submitting one-time settlement offers. This continuing wrong and continuous cause of action allows the application to be not barred by limitation. 17.9 It is submitted that the application is within the period of limitation because the corporate debtor has itself acknowledged the current continuance of debt by submitting an one-time settlement to settle the dues with the applicant. If the corporate debtor is of the opinion that the debt is time barred, it would not have submitted an one-time settlement at all. 17.10 It is submitted that therefore, the debt being due and payable on which the corporate debtor defaulted it is imperative to believe that the application under section 7 is maintainable and not barred by limitation. It is humbly prayed that the said application be accepted and CIRP may be initiated against the corporate debtor. 18. It is a settled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 The corporate debtor further submitted application on February 21, 2019, enclosing all one-time settlement letters submitted by them to the financial creditor and requested this Adjudicating Authority not to proceed in this the petition filed by the financial creditor under section 7 of the IBC as their one-time settlement proposal is pending with the financial creditor. 20.6 It is observed that the path for finding a resolution plan was clear only after the hon'ble High Court vacated the stay on March 7, 2018. The corporate debtor has been acknowledging that the debt is due to the financial creditor which is evident from their offer of 4 one-time settlement proposals to the financial creditor in 2019, though the same were rejected by the financial creditor for the offer of lower amount compared to their claimed amount. 20.7 The financial creditor had sanctioned loan of ₹ 11.36 crores but claimed total dues of ₹ 287.88 crores which includes undebited interest of ₹ 276.52 crores. 20.8 The present IB petition is filed by the duly authorised official of the applicant-bank in a prescribed format under section 7 of the Insolvency and Bankruptcy Code, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 and 14 of the I and B Code on the date of commencement of insolvency, this Adjudicating Authority declares moratorium with effect from today for prohibiting all of the following, namely : I. (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, Tribunal arbitration panel or other authority. (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein ; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of2002) ; (d) The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor ; II. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. III. The provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
