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TMI Blog2019 (3) TMI 1901X X X X Extracts X X X X X X X X Extracts X X X X ..... default in paying the financial debt of Rs. 213,90,70,549/-. 2. The following facts are not in dispute. 2.1 The bank guaranted and disbursed the loan in form of various cash credit facilities to the corporate debtor. Such loan and credit facilities were revived and extended from time to time. The credit facilities were lastly extended on 30.03.2016. The corporate debtor committed default in paying the loan. Various creditors of the corporate debtor have filed winding up petition in the Hon'ble High Court at Calcutta. The first of such petition appears to have been filed in the year 2011 [(CP No.363/2011) road builders (M) SDN BHD-vs- Tantia Constructions Ltd.] and the last petition appears to have been filed in the year 2016 (Fairdeal Merchants Private Ltd. -vs- Tantia Constructions Ltd.). It is seen from the record that there are 32 petitions for winding up of the corporate debtor are pending in the High Court filed by various creditors on the ground of the Corporate Debtor's inability to pay the debt. It is not in dispute that the State Bank of India has also appeared in those proceedings and filed its claim. State Bank of India oppossed the proposal of winding up of the corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcutta. That order is not challenged by the State Bank of India or any other creditor. Now this authority cannot admit the corporate debtor in the CIRP because this authority cannot sit in appeal against its own order passed above. 5. The Corporate Debtor pointed out that SBI did not disclose in the application under section 7 of IBC the particulars of pendency of winding up proceeding against the corporate debtor. They suppressed the material facts. It is nothing but amounting to seeking some orders from this authority playing fraud. Hence, their application under section 7 of IBC is not maintainable at all. 6. CA(IB) No.646/KB/2018 is Intervenor's application filed by one group of workers of the corporate debtor containing inter alia, that this application is not maintainable on the same ground as raised by the corporate debtor in their demurrer application bearing no. 243/KB/2018. 7. CA(IB) No.1184/KB/2018 is filed by another group of workmen of the corporate debtor challenging the maintainability of this proceeding on the same ground as have been raised by the corporate debtor. The applicant filed replies in both the applications. The parties also filed rejoinders. 8. I he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that this authority cannot proceed with the hearing of this application because the winding up petition is already admitted against the corporate debtor by the Hon'ble High Court. To support his argument, Ld. Counsel relied on the order of NCLT (Principal Bench) at New Delhi in Group of Company Petitions bearing No.190/PB/2017. (c) As against this, Ld. Counsel, Mr. Gaggar for State Bank of India submitted that only because winding up petition is admitted and pending for consideration of Hon'ble High Court is not enough to stay the proceeding under IBC. It has consistently been held by Other Benches of the NCLT (Principal Bench) NCLAT and the Hon'ble High Courts and even by the Hon'ble Apex Court. The Ld. Counsel relied on those orders and recent rulings to support his point of contention. 12, I have minutely gone through all such rulings and orders relied on by both the Ld. Counsels. I fail to understand as to how the order by Principal Bench at New Delhi could help the corporate debtor to support its contention. It has been held by the Principal Bench as under: "Thus there is no bar on NCLT to trigger an Insolvency Resolution Process on an application filed under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal. Hence, any reference to Section 11 in the context of the problem before us is wholly irrelevant. However, we decline to interfere with the ultimate order passed by the Appellate Tribunal because it is clear that the financial creditor's application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code." 15: In short, in all orders and ruling, one and the same principle of law is stated is that proceeding under Insolvency & Bankruptcy Code before NCLT is independent and separate proceeding than the proceeding of winding up pending before the Hon'ble High Court. Irrespective of the fact that any winding up petition is pending before the Hon'ble High Court, that does not ipso facto debar this Tribunal from proceeding with this application filed by the creditor under section 7 or 9 of IBC. However, once the order of winding up of the companies is passed and once the Official Liquidator is appointed, in such case, this Tribunal cannot proceed with hearing of any appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of acquittal of the accused for offence of murder was challenged in H.C.. The H.C. held him guilty. Death sentence was awarded. The appeal was decided by the SC. It converted punishment of death in to punishment of life imprisonment and the SC was considering review petition filed against that judgment by the accused. The ruling is not applicable to facts of this case. 19. I have gone through the order relied on by the Ld. Counsel. It is to be made clear that the order dated 02.08.2017 was passed in daily proceeding under rule 92 of NCLT rules, 2016. By that order, this authority simply adjourned that matter to next date. It is not a final order passed in the proceeding. Moreover, that order was passed way back on 22.08.2017 when law relating to status of the proceeding under I&B Code vis-a-vis proceeding under winding up petition pending against same company was not clearly set out and explained. Now by virtue of orders of NCLAT in case of Unigreen Global Private Limited - vs- Punjab National Bank & Ors. and also in view of the rulings of the Hon'ble Apex Court in the case of Forech India Ltd.-vs-Edelweiss Assets Reconstruction Co.Ltd. Now it is crystal clear that proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the corporate debtor is not material fact. It is not that the bank sought some favourable orders from this authority by suppressing those facts. Hon'ble Supreme Court made it clear that if party sought favourable orders from the Courts suppressing some materials facts then it is amounting to playing fraud. In this case, SBI did not get any order from this authority. This authority is yet to pass order of admission of the corporate debtor in CIRP. 23. I have gone through the rulings, wherein it has been held at page 5 that, "This apart, the respondent did not also disclose the fact in the cirminal revision field before the High Court that he has also been convicted in another Criminal Case No.202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls for the Intervenors submitted that SBI by suppressing material facts played fraud on this authority. In my considered opinion, non-disclosure of pendency of winding up petition against the corporate debtor is not a relevant and material fact to decide this application. Hence, I answer point no.(iii) in the negative.. 26. There is no dispute to the fact that the corporate debtor is liable to pay the bank the financial debt of more than Rs. 213 crores. They committed default in paying the debt. This application is defect-free. 27. The financial creditor suggested the name of Mr. Kshitiz Chhawchharia (Mob.9830492324), C/o- B. Chhawchharia & co., 8A & B Satyam Tower, 3, Alipore Road, Kolkata- 700 027 having Email id: [email protected] and registration no. IBBl/lPA-001/lP-P00358/2017-18/10616. A written communication dated 17.01.2018 of Mr. Kshitiz Chhawchharia, proposed IRP, mentions that there are no disciplinary proceedings pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. This application is defect-free. Hence, I admit the Corporate Debtor in CIRP by the following order: ORDER (i) The application filed by the Financi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IBC, 2016 may be made by the resolution professional upon receipt of the copy of this order. (viii) As per the proposal by the Financial Creditor for the appointment of Interim Resolution Professional (IRP), Mr. Kshitiz Chhawchharia (Mob.9830492324), C/o- B. Chhawchharia & co., 8A & B Satyam Tower, 3, Alipore Road, Kolkata- 700 027 having Email id: [email protected] and registration no.lBBl/lPA-001/lP-P00358/2017-18/10616 is appointed as the Interim Resolution Professional for Corporate Debtor for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. (ix) In view of admission of CIRP of the Corporate Debtor, CA(IB) No.243/KB/2018, CA(IB) No.646/KB/2018 and CA(IB) No.1184/KB/2018 stands rejected and disposed off. (x) Financial Creditor to pay Rs.l as advance fees to the IRP as per Regulation 33(2) of IBBI (IRP for the Corporate Persons), 2016 (xi) IRP is directed to complete the CIRP process in time bound manner as stated in Regulation 40A of IBBI Regulations, 2016. xii) Registry is hereby directed to communicate the order to the Financial Creditor, Corporate Debtor and to the Interim Resolution Professional by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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