TMI Blog2022 (2) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution dated 27.11.2019 to file this Application against M/s. Warm Forging Private Limited ('Respondent'/'Corporate Debtor') under Section 7 of the Insolvency and Bankruptcy Code ('IBC'/'Code'), 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, seeking initiation of Corporate Insolvency Resolution Process ('CIRP'), pursuant to default committed by the Respondent in repayment of the loan amount to the Applicant. It is seen that the Applicant had impleaded the Union of India. Ministry of Corporate Affairs as parties in this matter. As this is a Section 7 application under IBC, the Ministry of Corporate Affairs has no role to play and its inclusion in the array of parties is irrelevant and inconsequential. This matter is considered accordingly. 2. The Applicant/Financial Creditor is a Private Limited Company incorporated under the Companies Act, 1956 on 03.07.1985 and duly registered with the Registrar of Companies, Delhi, bearing CIN: U51909DL1985PLC021408. The registered office of the Applicant Company is at 111, Tribhuwan Complex, Ishwar Nagar, Mathura Road, New Delhi-10065 (Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an and would be returned once the Financial Creditor obtains the required permission from the RBI. Consequently, the Respondent was under obligation to repay the loan advanced by the Applicant upon the successful bidding and acquisition of the SPF. However, the same was not repaid. 8. The total expenses for the auction of SPF were specified as INR 7.00 crores. The applicant was asked to transfer INR 3.50 crores for its 50 per cent shares. Since the Financial Creditor did not have the necessary permission from the Reserve Bank of India to transfer the money abroad, the Corporate Debtor asked it to transfer the money to its account in India. On the request of the Corporate Debtor to transfer the said amount in his account in India the Financial Creditor disbursed a total amount of Rs. 3.50 crores on different dates. 9. A sum of Rs. 1,40,00,000/- was disbursed on 02.12.2016 vide Cheque No. 000274 H.D.F.C. Bank, Rs. 25,00,000/- by way of RTGS on 08.12.2016, Rs. 1,75,00,000/- vide Cheque No. 000186 dated 13.12.2016 H.D.F.C Bank and the remaining Rs. 10,00,000/- were disbursed on 15.12.2016 vide Cheque No. 000191 H.D.F.C. Bank. As per the loan agreement dated 04.12.2016 at Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w the application under Section 7 of the IBC being IB No. 296 (PB)/2018, T.A. No. 76/2018 filed before NCLT, New Delhi, which was further transferred to NCLT, Jaipur. 14. As claimed by the Applicant, the Respondent is liable to pay an amount of Rs. 3,50,00,000/- as reflected in Part IV of Form- 1 filed. 15. The Respondent/Corporate Debtor in his reply submitted that the Applicant/Financial creditor had filed a Company Petition bearing No. IB 296 (PB)/2018 and T.A. No. 76/2018 before filing the present application. The earlier application was dismissed as withdrawn for which the applicant has not sought any permission to file a fresh application. Hence, the subsequent application is barred by res-judicata. 16. Reliance in this regard is placed on the following judgments:-- i. M/s. Suri Rajendra Rolling Mills Vs. Ms. Bengani Udyog Pvt. Limited in Company Appeal (AT)(Insolvency) No. 334 of 2020, ii. Sarguja Transport Services Vs. State Transport Appellate Tribunal, M.P. Gwalior Ors., (1987) 1 SCC 5, iii. Bakhtawar Singh Anr. Vs. Sada Kaur Anr., (1996) 11 SCC 167, iv. Brookfield Technologies Pvt. Ltd. Vs. Shylaja Iyer Ors. In Company Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Padam Tea Co. Ltd., AIR 1974 Cal 170. 21. In Assets Reconstruction Company Limited Vs. Bishal Jaiswal Ors., the Hon'ble Supreme Court of India considered the applicability of Section 18 of the Limitation Act and held that Section 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the Corporate Debtor applies to proceedings under the IBC. Thus, the Hon'ble Supreme Court of India held that the entries in the Balance Sheet would amount to an acknowledgement of debt for extension of limitation under Section 18 of the Limitation Act. 22. Learned Counsel for the Petitioner/Financial Creditor placed reliance on the following judgments;-- i. Hon'ble Supreme Court of India delivered in the matter of Orator Marketing Pvt. Ltd. Vs. Samtex Desinz Pvt. Ltd. ii. Hon'ble NCLAT delivered in the matter of Sailesh Sangani Vs. Joel Cardoso Anr. in Company Appeal (AT)(Insolvency) No. 616 of 2018, iii. Hon'ble Supreme Court of India delivered in the matter of H.P. Financial Corporation Vs. Anil Garg Ors. (2017) 14 SCC 634. 23. In Orator Marketing (Supra) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal, M.P. Gwalior Ors., (1987) 1 SCC 5 relied upon by the learned counsel for the respondent is concerning the withdrawal or abandonment of a writ petition under Article 226/227 without permission to file a fresh writ petition and is not relevant in the present matter. The Hon'ble Supreme Court of India also dealt with principles underlying Rule-1 of Order 23 Code of Civil Procedure Code ('CPC'), 1908 and Principle of Res Judicata under Section 11 CPC. In the case of Bakhtawar Singh Anr. Vs. Sada Kaur Anr., (1996) 11 SCC 167, the appellants failed to justify the permission to withdraw the case nor have they satisfied the ground of taking benefit of Section 14 of Limitation Act, however, in the instant case the withdrawal was in the lieu of the Settlement between the parties. 27. In the present case, withdrawal of the Company Petition was taken place only when the Adjudicating Authority after considering the fact of settlement permitted the petitioner to withdraw the petition in view of Rule-8 of IBBI (Application to Adjudicating Authority) Rules. 2016. 28. Other judicial pronouncements placed and relied upon by the learned counsel for the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan from the Financial Creditor with the interest of 12% per annum repayable within three months from the communication of E-mail dated 28.05.2018, annexed at Annexure -A-9 (Colly). 33. The loan advance must be disbursed against the consideration for the time value of money, however, there can be a mutual understanding between the parties to waive the right to receive interest for the possible growth of the value of shares, business expansion or to meet the business requirements, etc. Further, an interest-free loan also falls under the definition of Financial Debt. 34. Upon a detailed consideration of the application and documents filed by the Applicant, it is apparent that the payment of the claim amount has been defaulted by the Corporate Debtor. Hence, this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under the provisions of IBC, 2016. 35. The Applicant has named one Mr. Deepak Arora with Registration No. IBBI/IPA-002/IP-N00122/2017-18/10291, duly registered with the Insolvency and Bankruptcy Board of India, to be appointed as the Interim Resolution Professional ('IRP'). The Applicant has filed his consent in For ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
