TMI Blog2020 (10) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... C is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate-Debtor-Company. Petition admitted - moratorium declared. - I.A. No. 300 of 2018 in C.P. (I.B.) Nos. 161/7/NCLT/AHM/2017 and 161 of 2017 - - - Dated:- 4-6-2020 - Harihar Prakash Chaturvedi, Member (J) And Prasanta Kumar Mohanty, Member (T) For the Appellant/Respondent: Anand R. Patel Led, Unmesh Shokla, Anmol Mehta, Apurva S. Vakil, Amaan Patel, Navin Pahwa, Arjun Sheth, Krina R. Parekh, Vidhi Thakkar and Kashish Pathak, Advocates ORDER PRASANTA KUMAR MOHANTY, MEMBER (T) 1. The present I.B. Petition is filed by the Financial Creditor BMW India Financial Services Private Limited under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a Code ), seeking initiation of Corporate Insolvency Resolution-Process ( CIRP in Short) against the Corporate Debtor Company namely, Parsoli Motor Works Private Limited for the default committed by the Corporate Debtor in making repayment of the various Financial Facilities/Debt of ₹ 58,10,00,000/- (Fifty Eight Crores Ten Lakhs only) granted by the Financial Creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved its right to revise the rate of interest with prospective effect, that the Corporate Debtor would be liable to provide personal guarantees of all shareholders/promoters, the Corporate Debtor shall provide collateral/guarantee to secure the repayment of the financing facility as may be required by the Financial Creditor from time to time, that the Corporate Debtor shall be required to execute such documents that may be necessary to secure the interest of the Financial Creditor, that the Corporate Debtor was required to execute financing facility agreement, demand promissory note, deed of hypothecation, etc. prior to disbursement. The sanction letter was signed by the Corporate Debtor in acknowledgement and acceptance of the terms and conditions contained therein. A copy of the sanction letter annexed with the petition as Annexure-IV/1. 4.3 It is stated that pursuant to the aforesaid sanction letter, various agreements, amendments, etc. came to be executed towards providing the financial facility by the Financed Creditor to the Corporate Debtor. 4.4 Spare Part Financing Agreement: The Financial Creditor issued a sanction letter dated 11 April, 2014 to the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,00,000/- (Rupees Five Crores Ten Lakhs only) granted Under the spare part Agreement, out of which INR 3,16,82,078.36 (Rupees Three Crores Sixteen Lakhs Eighty-Two Thousand Seventy-Eight and paisa Thirty-Six only is utilized and 5.3 INR 20,00,00,000/- (Rupees Twenty Crores) granted under the Working Capital Agreement, out of which, INR 17,49,99,800.01 (Rupees Seventeen Crores Forty-Nine Lakhs Ninety Line Thousand Eight hundred and paisa one only) is utilised. 6. It is stated that aforesaid financial facilities have been disbursed by the Financial Creditor to the Corporate Debtor from time to time. A copy of the statement of account; in respect of each of the aforesaid financial facilities granted by the Financial Creditor to the Corporate Debtor, reflecting the dates of disbursement, repayment and the principal balance outstanding upto 31 October, 2017 is annexed with the petition as Annexure-IV/26 Colly. 7. It is staged that in addition to the above, the Financial Creditor has also extended financial facility jointly to the Corporate Debtor and Mr. Talha Sareshwala of INR 61,00,006/- (Rupees Sixty-One Lakhs only). Out of the same, the principal amount outstanding as on 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce dated 1 February, 2017. 10.3 The Corporate Debtor vide its letter dated 1 February 2017 to the Financial Creditor stated that it was looking for an investor who could invest in the Corporate Debtor to enable the Corporate Debtor's current management to clear the outstanding amount and thereby sought support for the same from BMW. The Corporate Debtor vide its letter dated 16 March, 2017 acknowledged the support received from the BMW and for appointing KPMG for conducting the valuation for finding an investor and stated that the Board of Directors and shareholders of the Corporate Debtor have in their meeting held on 6th February 2017 respectively resolved and approved the proposal to initiate necessary process to sell, lease or otherwise dispose of the whole or substantially the whole of the undertaking of the Corporate Debtor on a going concern basis or otherwise and for which purpose Mr. Talha Yunus Sareshwala, the CEO and Managing director was being appointed. A copy of Resolution dated 6th February, 2017 was also enclosed. 11. It is stated that Financial Creditor by its letter dated 17 August 2017 referred the meeting dated 20 June 2017, letters dated 29 June 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor to the Financial Creditor as on 31 March 2017 is INR 52,74,44,701/- (Rupees Fifty-Two Crores Seventy Four Lakhs Forty-Four Thousand Seven Hundred One only). It is also stated that Petitioner Bank has served the copy of Application filed before this Tribunal to the Corporate Debtor as per the rule 4(3) of the Insolvency and Bankruptcy Rules, 2016. 14. The matter was taken up and heard both sides at this Bench on number of occasions commending from 14.11.2017 till 07.01.2020 when the order was reserved for pronouncement. The counsels of the Petitioner and the Respondent were present and put forth their submissions before the Bench. IA 300 of 2018 15. In the meantime, on 17.08.2018, the Corporate Debtor filed Interlocutory Application No. 300 of 2018 alleging that CP (insolvency and Bankruptcy) No. 161 of 2017 filed by the Financial Creditor is a fraudulent and malicious initiation of the proceedings initiated by the Financial Creditor. The Corporate Debtor further alleged in the IA that Financial Creditor i.e. BMW India Financial Services Private limited and BMW India Private Limited, the Respondent No. 2 in the IA in collusion with each other, has pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A copy of the Deeds of Hypothecation dated 15 November 2010, 13 April 2014, 30 June 2014, 11 May 2017 and 20 July 2017 are hereto annexed and marked Annexure-V/1 Colly. A copy of Index of the aforesaid charges created in favour of the Financial Creditor in favour of the Financial Creditor, obtained from the website of the Ministry of Corporate Affairs is enclosed herewith and marked Annexure-V/2. ii) Table of Bank Guarantees pertaining to Floor plan Agreement furnished by the Corporate Debtor: Sr. No. Bank Guarantee No. and Date of Creation (issued jointly in favour of BMW and Financial Creditor) Date of Expiration Amount 1. BG No. 00030100002585 dated 25 March 2011 12 February 2018 INR 2 Crores 2. BG No. 00030100002594 dated 2 April 2011 1 April 2018 INR 2.5 Crores 3. BG No. 15300100000194 dated 25 October 2011 24 October 2018 INR 2.25 Crores 4. BG No. 15300100000881 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor INR 2.5 Crores 3. 13 December 2012 Umer Uves Sareshwala Financial Creditor INR 13.7 Crores 4. 13 December 2012 Qudsiya Talha Sareshwala Financial Creditor INR 13.7 Crores 5. 13 December 2012 Khadija Zafar Sareshwala Financial Creditor INR 13.7 Crores 6. 13 December 2012 Mohammed Habib Sareshwala Financial Creditor INR 13.7 Crores 7. 13 December 2012 Fatema Uves Sareshwala Financial Creditor INR 13.7 Crores 8. 6 March 2015 Zafar Yunus Sareshwala Financial Creditor INR 14.9 Crores 9. 6 March 2015 Uves Yunus Sareshwala Financial Creditor INR 14.9 Crores 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Uves Yunus Sareshwala Financial Creditor INR 20 Crores 20. 28 June 2014 Umar Uves Sareshwala Financial Creditor INR 20 Crores 21. 28 June 2014 Fatema Uves Sareshwala Financial Creditor INR 20 Crores 22. 28 June 2014 Talha Yunus Sareshwala Financial Creditor INR 20 Crores 23. 28 June 2014 Qudsiya Talha Sareshwala Financial Creditor INR 20 Crores 24. 28 June 2014 Zafar Yunus Sareshwala Financial Creditor INR 20 Crores 25. 28 June 2014 Mohammed Habib Sareshwala Financial Creditor INR 20 Crores 26. 28 June 2014 Khadija Zafar Sareshwala Financial Creditor INR 20 Crores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties, has observed that BMW India Private Limited, the Respondent No. 2 in the IA 300 of 2018 is not a party in the main petition No. 161 if 2017 and has no locus and cannot be impleaded in the main petition No. 161 of 2017. 18.3 Further, the Petitioner of IA No. 300 of 2018/Respondent of Company Petition No. 161 of 2017 has vide numerous communications exchanged with the Financial Creditor in Company Petition No. 161 of 2017 and has owned full responsibility for the default committed by the Corporate Debtor and promised on number of occasions to make payment of the defaulted amount. Moreover, no one either BMW or BMW dealer can force any customer of Gujarat to buy from the Petitioner only. Customer is at liberty and he can purchase BMW car from any part of the country. The concept that a customer to purchase from a particular dealer is not tenable and it may be considered as an attempt to infringe on the right of a customer. Hence we do not find any merit in the IA. Hence the prayer made in IA No. 300 of 2018 is hereby rejected. Main Petition No. 161 of 2017 19. The Corporate Debtor has defaulted in making repayment of financial facilities/debt to the Petitioner and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 2002); (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 sub-section (1) shall not apply to (a) such transactions as may be notified by the Central Government in consultation with any financial sector regulator. IV. The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process. 23. The IRP is hereby advised to adhere the time limit as st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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