9911796707
TMI Blog2020 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... d office at MIDC, Talegaon, Dist. Pune, Maharashtra. 3. The respondent/corporate debtor is a private limited company registered under the Companies Act, incorporated on 08.06.1992 and having identification No. U72200GJ1992PTC017786 and having registered office at GIDC, Vatva, Ahmedabad, Gujarat State. Authorised share capital of the respondent company is Rs. 3,00,00,000/- and paid up share capital is Rs. 3,00,00,000/-. The respondent company is in the business of manufacture of electrical laminations known as motor stampings since 1982. 4. The applicant/Petitioner has submitted that total debt due as on April 30, 2018 and payable by the corporate debtor is Rs. 16,08,45,996/- (Rupees sixteen crores eight lacs forty-five thousand nine hundred ninety-six only) including the interest @ 6% per annum for the period beyond 90 days from the date of the invoice. That, date of default is January 07, 2014. 5. The applicant has further stated that notwithstanding the interest as per agreed credit terms, an interest @ 10.50% on the total outstanding amount is due and payable from the date of June 01, 2015 to April 30, 2018. 6. The applicant has further stated that it made several follow-ups ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms and date from which the debt fell due 383 7 Detailed chart showing the adjustments of the ad-hoc payments received and balance outstanding amount 384 8 Bank statements 9 Bank certificate of Standard Charted Bank dated 29.05.2018, Shinhan Bank dated 29.05.2018 and Yes Bank dated 29.05.2018 385 (A) 385 (B) 385 (C) 9. The respondent filed affidavit in reply raising various objections to the admission and maintainability of the company petition filed by the operational creditor. 10. It is stated by the respondent that it is a solvent company having reserve and surplus of Rs. 12.94 crores as on 31st March, 2018 with sales turnover of Rs. 54.92 crores. That, the corporate debtor's substratum is not lost and the company is solvent and regular in repayment of its dues to all its creditors including financial creditors. That, the company employs around 240 employees and workmen including contract labourers. That, the stake of the financial creditors is much higher than the stake of the operational creditor and, in view of the same, if the resolution process is initiated, it would frustrate the very object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to November, 2016. That, in case of failure on the part of the respondent to pay the operational creditor the said outstanding dues, the directors shall provide/execute personal guarantees in their respective individual capacities in favour of the applicant within 30 days from the date of such failure. 15. On perusal of the records it is found that as per Annexure - A to letter dated September 11, 2017 (page 64 of the reply) addressed to the corporate debtor by the applicant an amount of Rs. 16,06,45,635/- is shown as the principal outstanding payable by the corporate debtor to the applicant as promised in letter dated 03rd June, 2015. Upon payment of Rs. 3,36,00,000/- by the corporate debtor towards principal outstanding, the principal outstanding as on 31.08.2017 has been shown as 12,70,45,635/- and the total outstanding as on 31.08.2017 has been shown as Rs. 15,04,09,405/- which includes interest of Rs. 2,33,63,770/- Copy of the ledger book (01-04-2016 to 31-03-2017) annexed at page No. 124 to the reply of the corporate debtor, confirms that the corporate debtor had made the last payment of Rs. 10.00 lacs to the operational creditor on 9th January, 2017. 16. On perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny law of limitation and/or any other law for the time being in force. 21. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under Section 15 of the Code. Sub-section (2) of Section 13 says that public announcement shall be made immediately after the appointment of Interim Insolvency Resolution Professional. This Adjudicating Authority direct the Interim Resolution Professional to make public announcement of initiation of Corporate Insolvency Process and call for submission of claims under Section 15 as required by Section 13(1)(b) of the Code. 22. From the above stated discussion and on the basis of material available on record it is evident that the corporate debtor has committed default in payment of operational debt and, therefore, it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code. 23. The petition is, therefore, admitted and the moratorium is declared f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, no proceedings for striking off name of the respondent company be initiated arising out of non-compliances of Sections 159 to 162 & 220 etc. of the Companies Act, 2013 as it would be detrimental to the process of the liquidation and sale of assets to realise the amount for all the stakeholders. Inv. P 07 of 2019 30. During the pendency of the instant application, an Intervening Petition by UCO Bank was filed through its Chief Manager, UCO Bank, GH-5 Circle, Sector-16, Gandhinagar arraying POSCO India Pune Processing Center Pvt. Ltd. (Operational Creditor) as Respondent No. 1 and Poggenamp Nagarsheth Powertronics Pvt. Ltd. (Corporate Debtor) as Respondent No. 2. The Applicant (Intervener) submitted that the application so filed by Operational Creditor is not maintainable as it would defeat the object the IB Code and would create unnecessary burden on consortium and also, put public money at stake. 31. It is further submitted that by filing the application under Section 9 of the IB Code, the object of maximising the value of assets could not be achieved and if the same is admitted, it would result in great financial loss to the stakeholders in as much as in Secured Loans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been occurred in the sense that the debt is not due. No other person has a right to be heard at the stage of admission of the application under Section 7 and 9 of the I & B Code including the shareholders of the personal guarantor etc." 36. The Adjudicating Authority following the above referred judgment also made an order dated 19.11.2018 in the case of KKR Jupiter Investors (P.) Ltd. v. JBF Petrochemicals Ltd. [2018] thereby rejecting the intervention application filed by a third party. Para 17 of the said judgment reads thus: -- "17. Thus, it is clear that the third party (being an entity other than the Financial Creditor/Corporate Debtor) is not offered the right to be heard and/or to intervene in a proceeding initiated under Section 7 of the IB Code as affirmed by the Hon'ble Supreme Court. That from the aforesaid decision, it is clear that the Adjudicating Authority is only to satisfy that the default has occurred and that the Corporate Debtor is entitled to point out that the default has not been occurred in the sense that the debt is not due. That no other person has a right to be heard at the stage of admission of the application under Section 7 and 9 of the ..... 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