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TMI Blog2020 (10) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... rporated on 20.08.2007 under the Companies Act, 1956, with the Registrar of Companies, Maharashtra, Mumbai. Its CIN is U45201MH2007PLC173246. Its registered office is at 204, 2nd Floor, B-Wing, Eastern Heights, CTS No. 7-PT, PL Lokhande Marg, Govandi (E), Mumbai, Maharashtra 400 043. Therefore, this Bench has jurisdiction to deal with this petition. 3. The present petition was filed on 28.05.2019 before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 12,39,06,879.00 (Rupees twelve crore thirty-nine lakh six thousand eight hundred and seventy-nine only) as principal and interest as on 15.05.2019, which is the date of default. The case of the Petitioner-Financial Creditor: 4. The case of the Petitioner-Financial Creditor is as follows: - (a) The Petitioner-Financial Creditor and the Corporate Debtor executed a Financial Contract on 02.12.2015, whereby it was agreed that the Petitioner-Financial Creditor would provide a loan of upto Rs. 12,00,00,000/- (Rupees twelve crore only) to the Corporate Debtor at an interest rate of 12% per annum, repayable on demand (Point No. 1 of Sl. No. 1 of Part IV at page 8 of the Petition); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Bank statements are also attached as Exhibits 'K' to 'O' at pp. 83-202 of the Petition. The total debt due and payable to the Petitioner-Financial Creditor is Rs. 12,39,06,879.00 (Rupees twelve crore thirty-nine lakh six thousand eight hundred and seventy-nine only), as mentioned at p.76 of the Petition. The case of the Corporate Debtor: 6. Mr. Pradeep Sancheti, Learned Senior Counsel, appeared along with Mr. Ramesh Saraogi, Learned Counsel on behalf of the Corporate Debtor and made submissions. 7. In its reply dated 05.09.2019, the Corporate Debtor has inter alia set up the following defence: - (a) Two sister concerns of the Corporate Debtor, viz., Gajendra Investment Limited and Pratiti Trading Private Limited, have provided financial assistance to the Petitioner-Financial Creditor (para 3 at page 2 of the Reply); (b) The Petitioner-Financial Creditor and the Corporate Debtor were part of the "Satra Group of Companies." There is continuous and uninterrupted receipt and payment of money between the Petitioner-Financial Creditor and the Satra Group without any business deal backing for such movement of funds. The petitioner is only an "adjustment company" o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly); (h) The present petition is a collusive one between the Petitioner-Financial Creditor and the Satra Group. Further, the Petitioner-Financial Creditor has to pay the dues to the sister companies of the Corporate Debtor, which have already initiated proceedings under section 7 of the IBC against the Petitioner-Financial Creditor (para 15 at page 13 of the Reply); and (i) The exercise of CIRP against the Corporate Debtor is a dishonest exercise by the Petitioner-Financial Creditor and the Satra Group. The present matter deserves full trial in a civil court since the petitioner is trying to play a fraud on the respondent. CIRP cannot be commenced in a summary trial when the petitioner has committed such dishonesty and collusion (Last para at page 14 of the Reply). 8. We have heard the arguments of both sides and perused the records including written submissions dated 5.11.2019, judgment of Hon'ble NCLAT and judgments of Hon'ble Supreme Court relied upon by both the counsel, further affidavit of the Corporate Debtor dated 16.09.2019, written arguments dated 24.09.2019, affidavit in rejoinder of the Petitioner dated 17.09.2019 and 23.09.2019 and our observations are giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question mark on the genuineness of the purported transaction. In our opinion, this is not the usual business practice. 13. In para 5 of the Memorandum of Understanding (MoU) dated 23.03.2018, it has been recorded that "It is hereby agreed between the signatories to this MoU that amount if any, to be paid to Rushabh shall be paid only after receipt of full amounts by SRBL from all the Creditors as stated in Annexure 'A' and not before." 14. Further, Para 6 ibid records that "Rushabh declares and confirms that, this amount of Rs. 2 crore given to J. Vamshidhar Rao and Rs. 5 crore given to Shailima Kalvakuntla was given during the Satra Group Management of SRBL and is likely to be not recoverable from these two parties. If this amount of Rs. 7 Crore is not recovered ....shall be debited by SRBL to the account of Rushabh and thus shall not be payable by SRBL to Rushabh". As per Annexure "A," the Corporate Debtor has to recover a total outstanding amount of Rs. 19,74,48,789/-. 15. From the Particulars of Financial Debt provided in Form 1, Part IV of the petition, in the table showing the date of and amounts disbursed by the Financial Creditor to the Corporate Debtor, it is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigated by the police authorities, we refrain from making any comments lest we prejudice the investigations. The police authorities are free to take an independent view as regards the criminal investigations, unfettered by the views expressed in this Order. Balance outstanding confirmation letters were signed by the old management and not by the new management 23. The Corporate Debtor also raised other issues, e.g., loan agreement dated 02.12.2015 was never given to the Corporate Debtor but to the MJ Shah Group, violation of section 186 of Companies Act, 2013, etc. 24. In view of the aforesaid discussions, we are of the considered view that the Financial Creditor has failed to establish that there was a debt due and payable and that a default has occurred. Further, the Financial Creditor has failed to produce proper authorisation to initiate CIRP against the Corporate Debtor. The petition also has inconsistencies and inaccurate information and documents such as the Demand Notices being issued before the date of default, the disbursement details include payment made to other companies whose relationship with the Corporate Debtor has not been established, no corresponding Bank En ..... X X X X Extracts X X X X X X X X Extracts X X X X
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