TMI Blog2023 (2) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Union of India Ors. [ 2019 (1) TMI 1508 - SUPREME COURT ] upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a 'dispute' as far as Section 7 petition is concerned. As soon as a 'debt' and 'default' is proved, the adjudicating authority is bound to admit the petition. The application made by the Financial 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 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. - CP (IB) 973/MB/C-I/2020 - - - Dated:- 9-2-2023 - HON'BLE MEMBER (JUDICIAL), JUSTICE P. N. DESHMUKH (RETD.) AND HON'BLE MEMBER (TECHNICAL), MR. SHYAM BABU GAUTAM For the Financial Creditor : Mr. Nishit Dhruva, Advocate. For the Corporate Debtor : Mr. Ravi Kadam, Sr Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank Guarantee 50.00 8. Credit Equivalent Exposure 26.00 Total 756.75 6. The Corporate Debtor was liable to repay the amount of Rs. 606,17,29,608.48/- (principal) along with interest of Rs. 238,39,26,438.43/- plus Penal interest of Rs. 28,01,52,355.36/- as on 01.05.2020. (Application Pg No. 06) 7. Thereafter, the Financial Creditor submits that there are various securities in the form of Equitable mortgage on immoveable properties in favour of the Applicant by way of deposit of the title deeds with respect to various facilities provided by it to the Corporate Debtor. The details of the securities held by the Applicant are detailed as follows: (Application, part V at pages 7-12). Primary Security: i. Equitable Mortgage and charge on pari pasu basis in favour of Applicant via. Memorandum of Entry dated 14th December, 2015 upon a) Office Block No. 403, Kalpana Plaza, 24/147-B, Birhana Road, Kanpur. b) Office Block No. 411, Kalpana Plaza, 24/147-B, Birhana Road, Kanpur (Annexed as Exhibit G-1 ) ii. Equitable Mortg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deed of Guarantee dated 26th November, 2015, (Annexed as Exhibit H-4 ) 3. N.S.D. Nirman Pvt. Ltd. via. Deed of Guarantee dated 26th November, 2015, (Annexed as Exhibit H-5) 8. The Corporate Debtor vide legal notice dated 06.08.2018 had called upon the Corporate Debtor to pay the principal amount along with interest from 21.06.2018 (Annexure O-1 Pg 561). 9. Owing to the failure of the Corporate Debtor to repay the amount, the account was declared NPA w.e.f. 30.06.2018. 10. The Corporate Debtor vide Revival letter has acknowledged the liability to the Applicant. The Revival letter addressed by the Corporate Debtor is placed as Exhibit O-2 at page 564 . Also, vide letters of acknowledgement of debt dated 23.01.2017 23.03.2018 and in the audited Balance sheets respectively. (Rejoinder at Pg. 10) 11. The stand taken by the Financial Creditors is that the Company Petition is barred by Res Judicata as a petition filed in respect of the same alleged debt and default, arising of the same transaction and cause of action by the Applicant was adjudicated by this Tribunal in CP No. 3608/I B/NCLT/MB/MAH/2018. Submissions made the Corporate Debtor: 12. The prelimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l plan under the RBI circular dated 07.06.2019. (I.A. Pg No. 13-14). 15. Further, the Corporate Debtor submitted that the prayers sought by the Financial Creditor in the Application cannot be granted by virtue of the order dated 13.12.2021 by this Tribunal in CP No. 410 of 2021 filed by Union of India (through serious Fraud Investigation Officer) v. Frost International Ltd. wherein the Tribunal has directed the Respondents arrayed as parties to maintain status quo. The matter is taken up through Virtual Hearing (VC). This Company Petition is filed by Petitioner i.e. Serious Fraud Investigation Office (SFIO) us 212 rule 14(a) of the Companies Act, 2013 seeking various prayers, there are 20 respondents be arrayed as party respondents in this Petition. Learned Counsel for Petitioner submits that the properties which are not attached by Enforcement Director, needs to be protected. Senior Counsel Mr. Ravi Kadam appearing for Respondent Nos. 1, 10, 12 and 13 submitted that on 26.08.2021 some of the properties which are mentioned in the present Petition are already attached by Enforcement Director (ED). In the circumstances respondents as arrayed as parties in the in the present Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus the petition is not in conformity with requirement of the MCA notification dated 27.02.2019 notifying the persons authorized to file a petition under the Code. The Corporate Debtor has relied on the cases of Palogix Infrastructure Pvt. Ltd. v. ICICI Bank Ltd. (2018] 1 Comp Cas-OL 140 (NCLAT), Ingersoll Rand Climate Solutions P. Ltd. v. Prajay Engineers Syndicate Lid. (NCLT, Hyderabad - Para 9) Shantilal Khushaldas and Brothers Put. Ltd. v. Smt. Chandanbala Sughir Shah [(1993) 2 Bom CR 651] and Nibro Limited v. National Insurance Co. [(1991) ILR II Del. 172] 20. The submissions submitted in the I.A. 2001 of 2022 mirror the submissions of the Corporate Debtor in Reply to the Application and hence the contents are not reproduce for the sake of brevity. 21. The Corporate Debtor through an Additional Affidavit has submitted that the realizable value of the Applicants assets exceeds its potential liabilities thus, the net worth of the Applicant is positive. Further it is submitted by the Corporate Debtor that the contract with government of its prime asset of the Corporate Debtor i.e. its Oil Block investment by virtue of the Exploration Licensing Policy issued by the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of the account 'fraud' on the basis of the Forensic Audit report, the court held that sufficient opportunity had been given to the Petitioner/Corporate Debtor and no prejudice is caused to the petitioner. Thus, the petition being No. 8092 of 2019 of the Corporate Debtor challenging the declaration of the account 'fraud' has been dismissed by the Hon'ble High Court (Exhibit A, pg 8 of Rejoinder) Findings: 25. Heard the Ld. Counsel for the Financial Creditors and the Ld. Counsel for the Corporate Debtor and perused the records. 26. The Corporate Debtor's main contention is 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. Whereas it is observed 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. 27. Upon perusal of records, this Bench is of the considered opinion that the money owed by the Corporate Debtor to the Financial Creditor is legally due and payable. 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002; (iv) The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. (c) Notwithstanding the above, during the period of moratorium:- (i) The supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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