TMI Blog2020 (12) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the erstwhile name of the company. Since the name of the Corporate Debtor in the order of Hon'ble NCLAT was reflected only as M/s. Marappar Textiles Private Limited, considerable time was spent in tracing out this application, since no application is pending before this Adjudicating Authority in the name of M/s. Marappar Textiles Private Limited . Further, Form-VI of the Application stands in the name of M/s. Prithviraj Spinning Mills Private Limited and the registered office does not match with the Master Data of the Ministry of Company Affairs. The Applicant after deciding to submit itself for initiation of CIRP under Section 10 of IBC, 2016, has decided to change its name, thereafter obtaining a fresh Certificate of Incorporation, decided to go another step to change the Registered Office address and also pending adjudication has settled the dues of the 2nd Respondent alone. Whether a fresh liability was incurred or paid out of its own sources is not available. However, since the Applicant is under huge debt, it might have incurred fresh debt, on the verge of going into CIRP. From the flow of event as to the present case, it is necessary to relook at the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attendance sheet of the members and Form NGT 14 which was filed before the ROC. Thereafter, the matter was taken up for hearing on 04.03.2020 and at the request of the Applicant, the matter was adjourned to 17.03.2020. Sunsequently, due to Covid-19 Pandemic and attendant lockdown imposed by the State and Central Government, the matter was listed on 20.08.2020 and the counsel for the 1st Respondent has sought time to file counter on 20.08.2020. However, on 20.08.2020, there was no representation on behalf of RI and R2 and the matter was adjourned to 02.09.2020. 3. In the meantime, it is seen from the records that the Authorized Representative has filed a memo before this Tribunal on 19.08.2020 vide Diary No. 2350, wherein it has been stated that the Applicant Company has paid off the amounts which is due to the 2nd Respondent / State Bank of India and Form CHG 4 intimating the satisfaction of charge has also been filed with the RoC, Coimbatore. This leads us to the question as to what drove the Applicant to settle the entire dues of the 2nd Respondent / State Bank of India alone, de hors the dues of the other creditors. Further, it has not been disclosed as to how the said sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Office is governed by the Companies Act, 2013 and from the documents filed along with the IA, is evident that the Applicant has followed the procedures as contemplated under the Companies Act, 2013. 7. This Tribunal is unable to fathom as to why there is a change in the name of the Applicant Company just when they are filing an Application under Section 10 of IBC, 2016. It is significant to point out here that Section 10 of IBC, 2016 is a peculiar section in which the Corporate Applicant himself submits that he is unable to service its due to the creditors and consequently to declare him as insolvent and to initiate the Corporate Insolvency Resolution Process. Under such circumstances, if an Application is admitted then the IRP has to cause a public announcement as per Section 15 of IBC, 2016. Assuming for a moment, if the name of the Company is being changed along with its Registered Address just before this Tribunal triggers the CIRP, then the IRP has to necessarily cause paper publication in relation to the Corporate Debtor in its new avatar and as such, the creditors of the Corporate Debtor would not be in a position to identify Corporate entity in its new avatar and it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Applicant to come with clean hands before this Tribunal and the Applicant ought to have brought to the knowledge of this Tribunal the change of name of the Applicant Company, while filing of the Section 10 Application itself, since the matter is sub-judice and any action done by the Applicant Company without the knowledge of this Tribunal would have severe repercussion. Further, the intention of the Applicant Company to change its name and then immediately file an Application under Section 10 of IBC, 2016 would lead to an irresistible conclusion that the Application has been filed by the Applicant Company with a malicious intention to defraud the creditors, since the creditors would not be able to identify the Applicant Company in its new avatar once the public announcement has been made in the newspapers. 10. The IA/636/2020 is an application with a prayer to amend Form - VI which was filed by the applicant to give effect of change of name and change of the Registered Office. The Petitioner has sought for amendment of Form-VI which is pivotal for this application. However, the Applicant has not filed the amended copy of Form-VI along with this application. The IA was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this matter within a period of one week. The copy of the orders passed by the Hon'ble NCLAT was forwarded by the Authorized Representative for the Applicant Company on 04.12.2020. However, the certified copy of the order is yet to be received by the Registry. Accordingly, this matter was listed for hearing today (i.e. 09.12.2020) and is being disposed of by dictation in open court. 14. It is to be noted here that after the orders have been reserved in IBA/120/2020, the Applicant has filed two IA's and the same is yet to be numbered by the Registry and still pending at the SR stage. First IA/SR/No.1042/2020 was filed on 16.10.2020 to avoid payment of dues to Tamil Nadu Electricity Board (TNEB). 15. Further, the Authorized Representative for the Applicant Company has filed another Application which is also yet to be numbered by the Registry and is pending at SR stage vide IA/SR No. 1167/2020 dated 06.11.2020 and the Applicant in that Applicant has sought for the relief as follows; a) Pass Ad-interim Order restraining the Respondent from invoking the provisions of the SARFAESI Act, 2002 till disposal of the application filed by the Applicant u/s 10 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m-VI of the Application stands in the name of M/s. Prithviraj Spinning Mills Private Limited and the registered office does not match with the Master Data of the Ministry of Company Affairs. As already stated supra, the amended copy of the petition has not filed till date. Inspite of opportunity given to the Applicant, the Applicant has not taken steps to file the same. The change of name of the Applicant Company and the registered office has not been amended in the application pending in this Adjudicating Authority. 18. From the foregoing discussions and documents, it emerges that the Applicant after deciding to submit itself for initiation of CIRP under Section 10 of IBC, 2016, has decided to change its name, thereafter obtaining a fresh Certificate of Incorporation, decided to go another step to change the Registered Office address and also pending adjudication has settled the dues of the 2nd Respondent alone. Whether a fresh liability was incurred or paid out of its own sources is not available. However, since the Applicant is under huge debt, it might have incurred fresh debt, on the verge of going into CIRP. We have no means to protect the recent debtor, whether they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... professional. (4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the application, by an order- (a) admit the application, if it is complete; or (b) reject the application, if it is incomplete: Provided that Adjudicating Authority shall, before rejecting an application, give a notice to the applicant to rectify the defects in his application within seven days from the date of receipt of such notice from the Adjudicating Authority. (5) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (4) of this section. 21. Section 10(4)(b) of IBC, 2016 contemplates that this Adjudicating Authority has the right to reject the Application if it is incomplete. As already stated supra, inspite of opportunity being granted, the Form - VI as filed by the Applicant is incomplete in all respects. Further, this Adjudicating Authority also cannot pass an order of CIRP as against M/s. Prithviraj Spinning Mills Private Limited since the name of the Company is not in existence as on date. 22. Hence, for the reasons set out supra, the IBA/120/2020 filed by the Applicant Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
