TMI Blog2019 (9) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Ankur Goyal, Advocate For the Respondents : Swayambhoo Chandranshul ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present petition is filed under Section 7 of Insolvency and Bankruptcy Code, 2016 read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 by the petitioner/financial creditor i.e. Corporation Bank for initiation of Corporate Insolvency Resolution Process against the Respondent/ Corporate debtor company M/s. Multiwal Duplex Private Limited. 2. The Applicant Corporation Bank is a Banking Institution and corporate body constituted under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970. Sri. Arvind kumar Srivastwa Chief Manager, has been authorised to file this application on behalf of Financial Creditor. 3. The Respondent M/s. Multiwal Duplex Private Limited, incorporated on 08/05/1985 (Having its Registered Office at, Bazpur Road Kashipur US Nagar Uttarakhand. CIN U21011UR1985PTC007180). The authorised share capital of respondent is ₹ 1,80,00,00,00/- (Rupee Eighteen Crores Only) and Paid- Up share Capital is ₹ 1,80,00,00,00/-(Rupee Eighteen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany and in consideration thereof have executed, signed and delivered to the Financial Creditor Guarantee Agreement acknowledging therein their liability to repay the same as equal and co-extensive with the principal borrower. (Certified true Copy of the Guarantee Agreement (W-12001) dated 23.03.2013 is annexed as Annexure 14 of the Application). iv. After availing the credit facility from the applicant bank, the directors have failed and neglected to keep their account regular and in order. Hence the account of the corporate debtor company was classified and declared as NPA on 30.08.2015 as per RBI Guidelines/norms. v. Hence, the amount claimed by the Financial creditor as default against corporate debtor is ₹ 34,73,29,389.00/-(Rupees Thirty-Four Crores Seventy-Three Lakh Twenty-Nine Thousand Three Hundred and Eighty-Nine Only) in cash credit Account as on 22.01.2019 plus interest and other charges is due as outstanding against the directors jointly and severally, which is being legally recoverable from them being amount of debt due against them to the applicant bank. vi. The respondent in the counter affidavit stated that due to good paying capacity an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on bank in their share proportion which is higher amount than auction sale amount as trying to realize through action sale but financial creditor i.e. corporation bank is not ready to settle the matter. xi. Further stated that the application filed by financial creditor i.e. Corporation Bank is not supported with all material pleading and material documents under provisions of aforesaid Application under section 7 of the Insolvency and Bankruptcy code, 2016 read with Rule 4 of the Insolvency and bankruptcy (Application to Adjudicating Authority Rule, 2016 hence same is not maintainable and is liable to be dismissed. xii. It is further stated that Corporate Debtor i.e. M/s. Multiwal Duplex Private Limited is not a wilful defaulter and it could not repaid its dues due to halt due to pollution issue raised by the Uttarakhand Environment Production Pollution Control Board, Dehradun which adversely affected the business operations of the company as Uttarakhand Environment Protection 7 Pollution Control Board had issued direction to all pulp and Paper Industries to complete the charter implementations programme by 31.12.2012, which was extended up to 31.03.2013 and other reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Annexure 17 of the application and the petition is filed on 13.02.2019 which is within the limitation period as per Sec 18 of the Limitation Act, 1963. 9. Ld. Counsel for the Financial Creditor submitted that in order to prove the Existence of the Financial Debt; they have annexed following documents: i. The Copy of board resolution dated 08.10.2013 stating the company will avail credit facility of ₹ 20 crores from Corporation Bank, Moradabad with terms and conditions dated 25.02.2013. (The Copy is annexed as Annexure-5 of the application) ii. Applicant has also annexed the copy of the loan application dated 15.01.2013, Credit Sanction Intimation dated 25.02.2013. (The copy is annexed as Annexure -6 and Annexure -7 of the application). iii. The copy of letter of undertakings from the borrowers accepting the terms and conditions of the loan account dated 23.03.2013. (The copy is annexed as Annexure -11 of the application) and copy of guarantee agreement dated 23.03.2013 (Annexed as Annexure -14 of the application). iv. The applicant also annexed the letter of acknowledgement of debt in respect of balance outstanding dated 22.02.2016. (The Copy is anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Ltd. v. ICICI Bank .(2017)205 Comp Cas 57(SC) held: The scheme of Sec 7 stands in contrast with the scheme under Sec 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in sec 8(1) of the Code. Under Sec 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Sub Section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing -i.e., before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor goes out of the clutches of the Court. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the Adjudicating Authority has merely to see the records of the information utility or other evidence produced by the Financial Creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no disciplinary proceedings are pending against him. (Copy of Form -2 is annexed as Annexure-2 of the Application) and there is default in the payment of the financial debt which is more than Rs One Lakh. Therefore, as per section 7(5)(a) of the code, the present application filed U/s 7 of the IB Code is admitted. 18. Mr. Manish Agarwal, Registration Number IBBI/IPA-002/IP-N00223/2017-18/10904 is appointed as Interim Resolution Professional(IRP). Further, a moratorium under the provision of section 13 14 of the Code is declared prohibiting the following: i. 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; ii. Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; iii. 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 Securi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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