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TMI Blog2023 (2) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs twenty six thousand four hundred and thirty eight and forty three paise) are payable by the Corporate Debtor and the Corporate Debtor has defaulted in repayment of the same. 3. The total amount claimed to be in default by the Financial Creditors is Rs. 8,72,58,08,402.27/- (Rupees Eight hundred seventy-two crores fifty-eight lakhs eight thousand four hundred two and paise twenty-seven only). The date of default stated to be is 12.04.2018. 4. The Corporate Debtor is a company limited by shares incorporated on 17.05.1995 under the Companies Act, 1956, with the Registrar of Companies, Mumbai. Its registered office is at 709-C Wing, One BKC, near Indian Oil Petrol Pump Bandra Kurla Complex, Bandra (East) Mumbai - 400051. Therefore, this Bench has jurisdiction to deal with this petition. Submissions made by the Financial Creditor: 5. The Financial Creditor submits that the Corporate Debtor was had availed various credit facilities sanctioned by the Applicant since 1996. The Financial Creditor have sanctioned total of Rs. 756.75 Crores vide sanction letter dated 05.09.2017 in the following facilities as under: Sr. No. Facilities Amount (in Rs.) 1. Cash Credit 0.75 2. EP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Block, Plot No. 66, CTS No. 4207, Bandra Kurla Complex, off. Bandra-Kurla Link Road, Bandra (E), Mumbai - 400051 (Annexed as "Exhibit G-4") v. Hypothecation of stocks of all the current assets of the Corporate Debtor, Raw Material, Stock in Process, Semi Finished and Finished Goods, Bills Receivables, Book Debts both present and future and also the whole of the moveable fixed assets (Annexed as "Exhibit G-5) Personal Guarantee: 1. Uday Jayant Desai 2. Suman Jayant Desai, 3. Nilima Uday Desai, 4. Sunil Verma, 5. Rita Sunil Verma, 6. Anoop Kumar Wadhera, 7. Sujay Uday Desai, 8. Sanjana Uday Desai, 9. Nipun Sunil Verma, 10. Saral Sunil Verma, 11. Poonam Anoop Kumar Wadhera (Annexed as "Exhibit H-1" - copy of Deed of Guarantee dated 26' November, 2015.) 12. Uday J. Desai (HUF), 13. Sunil Verma (HUF) (Annexed as "Exhibit H-2 - Deed of Guarantee dated 26 November, 2015 executed by Uday J. Desai (HUF), Sunil Verma (HUF) Corporate Guarantee: 1. R.S. Builders Pvt. Ltd. via. Deed of Guarantee dated 26th November, 2015, (Annexed as "Exhibit H-3). 2. Globiz Exim Pvt. Ltd. via. Deed of Guarantee dated 26th November, 2015, (Annexed as "Exhibit H-4") ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Uttar Pradesh and Ors. (2010) 2 SCC 114 and Oswal Fats and Oils Limited v. Additional Commissioner and Ors. (2010) 4 SCC 728 14. Moreover, it is the case of the Corporate Debtor that the present Application is in violation of the RBI circular dated 07.06.2019 as no opportunity was given to the Corporate Debtor to submit a resolution plan or restructure its debt under an inter creditor arrangement. The Corporate Debtor submits that the Corporate Debtor on 09.07.2018, had submitted a resolution plan which was rejected by the Financial Creditor on frivolous and arbitrary grounds. Further the Corporate Debtor had submitted a revised resolution plan which was also rejected by the Financial Creditor without any consideration arbitrarily. Furthermore, the Corporate Debtor also proposed one-time settlement on 07.09.2018 which was also not accepted by the Financial Creditor. Thus, it is contended by the corporate Debtor that the Financial Creditor has violated the principles of fair play and equity by prejudging the Corporate Debtor's case and denying it an opportunity to present a revival plan under the RBI circular dated 07.06.2019. (I.A. Pg No. 13-14). 15. Further, the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the RBI issued COVID Regulatory package dated 23.05.2020 which permitted a relaxation of the review period and the resolution period of stressed assets under the Stressed Assets Regulatory Framework'. (I.A. Pg. 21). 18. It is also submitted by the Corporate Debtor that the documents relied on by the Applicant are insufficiently stamped and hence inadmissible and cannot be acted upon. The Corporate debtor has relied on the judgments of Smartworks Coworking Spaces Private Limited v. Turbot HQ India Private Limited and N.N. Global Mercantile Private Limited. v. Indo Unique Flame Limited and Ors. (2021) 4 SCC 379 (I.A. Pg No. 14-15). 19. The Corporate Debtor has further submitted that the Application is filed without authority/incompetently that the bare perusal of the Power of Attorney and Letter of Authorization of the Authorized Officer it is apparent that the said Resolution 1) is not a power of Attorney. 2) has not been executed on stamp paper, cannot be taken cognizance of 3) has not been signed by signed by any Director or authorized person of Bank of India and thus the petition is not in conformity with requirement of the MCA notification dated 27.02.2019 notifying the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est. Thus, the Financial Creditor submitted that the 1st Petition was filed based on RBI circular dated 12.02.2018 and hence, could not have been filed as was concluded in the order dated 14.10.2019 of this Tribunal. (Page 6 of Rejoinder). 23. Further the Financial Creditor has submitted that the resolution plan and the revised resolution plan was rejected by the bank. Further the one time settlement proposal to the bank from the Corporate Debtor was also rejected as the One time settlement offer was not viable and on very lower side. It was further submitted by the Financial Creditor that no plan was submitted by the Corporate Debtor in the year 2019 and it could not also not do so as the account of the Corporate Debtor was declared 'fraud' pursuant to which the Financial Creditor has has filed a complaint/FIR before CBI on 19.01.2020. (Page 7 of Rejoinder) 24. The Financial Creditor further submits that the Hon'ble High Court passed an order dated 26.07.2019 in writ petition being No. 8092 of 2019 of the Corporate Debtor challenging the declaration of the account 'fraud' on the basis of the Forensic Audit report, the court held that sufficient opportunity ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 31. It is, accordingly, hereby ordered as follows:- (a) The petition bearing CP (IB) 3923/MB/C-I/2019 filed by Bank of India Limited, the Financial Creditor, under section 7 of the IBC read with rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Frost International Limited [CIN: U05001MH1995PLC243081], the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC, in regard to the following: (i) The institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, 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 Securiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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