TMI Blog2021 (10) TMI 813X X X X Extracts X X X X X X X X Extracts X X X X ..... cts as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of rupees one lakh stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared. - CP (IB) No. 3221/MB-IV/2019 - - - Dated:- 2-8-2021 - Rajesh Sharma, Member (T) And Suchitra Kanuparthi, Member (J) For the Appellant : Umang Merita, Advocate i/b Tauras Legal ORDER Rajesh Sharma, Member (T) 1. This is a Company Petition filed under section 9 of the Insolvency Bankruptcy Code, 2016 (IBC) by National Engineering Industries Limited, a Leading Manufacturer ( the Operational Creditor ), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Windals Auto Private Limited ( the Corporate Debtor ), [CIN: U50101MH1990PTC056302]. 2. The Corporate Debtor is a company incorporated on 23.04.1990 under the Companies Act, 1956, as a private com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Rupees two crore twenty-eight lakh ninety-one thousand seven hundred and fourteen only) to the Operational Creditor inclusive of interest. However, the Corporate Debtor had requested the Operational Creditor to provide at a discount of ₹ 3,21,974/- (Rupees three lakh twenty-one thousand nine hundred seventy-four only) by rounding off the actual amount of Operational Debt to ₹ 2,25,00,000 (Rupees two crore twenty-five lakh only). The said rounded off amount of Debt was accepted by the Operational Creditor subject to the condition that the Corporate Debtor will give a concrete scheme of the payment of the Debt and will strictly adhere to the scheme and will not commit any default in payment of the debt amount in future and continue to pay debt as per the proposed scheme of payment. The Corporate Debtor proposed a scheme/plan towards payment of the Operational Debt of ₹ 2,25,00,000/- (Rupees two crore twenty-five lakh only) due, which was accepted by the Operational Creditor and was accordingly recorded in the minutes of the said meeting as the Schedule of Payments beginning from November 2016, where under the Corporate Debtor undertook to make part payments per wee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2016 ( Rules ) read with Section 8 of the Insolvency and Bankruptcy Code, 2016 ( Code ). The Demand Notice is annexed as Exhibit 'F-1' of the Petition. Vide the said Demand Notice, the Operational Creditor claimed an outstanding amount of ₹ 2,29,12,198/- (Rupees two crore twenty-nine lakh twelve thousand one hundred ninety-eight only) (comprising the principal amount of ₹ 1,44,83,328/- and interest of ₹ 84,28,870/- calculated @18% per annum from 17th September 2015 till 31st May 2019). i) However, the Corporate Debtor replied to the said Demand Notice vide its letter dated 2nd July 2019, wherein the Corporate Debtor made several false and frivolous allegations and denied the outstanding amount due relying on vague and evasive averments. A copy of the Reply to the said Demand Notice is attached as Exhibit 'G' of the Petition. 5. The Operational Creditor has submitted the brief written submissions as follows: a) The matter was listed on 10.03.2021, when it was extensively argued by the Operational Creditor in furtherance of which, the Bench was pleased to adjourn the matter on 27.04.2021 for orders. In the meantime, the Bench als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court reiterated the view as laid down by the Hon'ble NCLT and the Hon'ble NCLAT and held that the intent of the IBC was not to reopen or revive time-barred debts. Accordingly, the Court held that there is no reason to exclude the effect of section 18 to the proceeding initiated under the IBC. d) Furthermore, the said issue has been also clarified by the Hon'ble NCLAT in M.M. Ramachandran V. South Indian Bank Ltd. Ors. [Company Appeal (AT) (Insolvency) No. 1509 of 2019] and is further confirmed by the Hon'ble Supreme Court in Civil Appeal No. 2951 of 2020. The brief facts of the said case are more particularly set out as under: i) In the said case, the account of the Corporate Debtor was marked as a Non-Performing Asset (NPA) on 13.12.2015, the Financial Creditor, being a Bank, filed an application under section 7 of the Code on 10.04.2019 i.e. much beyond the period of 3 years. The NCLT admitted the said Petition, passed an order of moratorium, and appointed an Insolvency Resolution Professional (IRP). ii) The promoter of the Corporate Debtor, M.M. Ramachandran, then preferred an appeal against the order of the Hon'ble NCLT, by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of each and every invoice, from the date of such acknowledgement of liabilities in a manner as contemplated under section 18(1) of the limitation act, 1963. f) Hence, in view of the position of law as reiterated in the above referred judgments, the Operational Creditor can avail the benefit of section 18(1) of the Limitation Act and hence a fresh period of limitation shall be computed from the date of admission of the liabilities made in the said minutes of the meeting and the payments made in pursuance thereto. 6. The Operational Creditor had served a Demand Notice in Form 3 dated 27.05.2019 to the Corporate Debtor which is placed at pp. 223-244 as Exhibit 'F' of the Petition in terms of section 8 of the IBC. The said Demand Notice was served on the Corporate Debtor. The Corporate Debtor has replied to the Demand Notice denying the liability to pay. 7. The Operational Creditor has also submitted the Ledger Accounts of Corporate Debtor for period of 01.11.2016 to 31.03.2019 which is placed at pp. 218-222 as Exhibit 'E' of the Petition. 8. Invoices have been placed on record at pp. 24-215 as Exhibit 'B' of the Petition. The total debt du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 217 as Exhibit 'C' and 'D' respectively; b) The date of default is 23.03.2019. 14. Therefore, the Petition made by the Operational Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of rupees one lakh stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 15. The Operational Creditor has proposed Mr. Arun Bagaria as Interim Resolution Professional (IRP) in the matter. 16. It is, accordingly, hereby ordered as follows: - (a) The petition bearing CP(IB) 3221/MB-IV/2019 filed by National Engineering Industries Limited, the Operational Creditor, under section 9 of the IBC read with rule 4(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Windals Auto Private Limited [CIN U50101MH1990PTC056 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow. (h) The Operational Creditor shall deposit a sum of ₹ 5,00,000/- (Rupees five lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) The Registry is directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from the date of this Order. (j) A copy of this Order be sent to the Registrar of Companies, Maharashtra, Mumbai, for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receipt of a copy of this order. - - TaxTMI - TMITax - Insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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