2022 (5) TMI 313 - Tri - Insolvency and Bankruptcy

Tribunal Admits CIRP Application, Appoints IRP

The Tribunal admitted the application for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, declaring a moratorium ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Financial Creditor vide the Debenture Trust Deed dated 17.11.2017 issued Non-convertible Debentures to the Corporate Debtor of value of Rs.10,00,000/- each for the cash at par aggregating to Rs.310,00,00,000/- - The Corporate Debtor has not disputed the claim amount nor denied the Debenture Trust Deed entered between the parties. On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than Rs.1,00,00,000/- is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in payment of debt amount. Therefore, we do not have any objection on record against the application filed for initiation of CIRP against the Corporate Debtor - The application is complete and has been filed under the proper form. The debt amount is more than Rupees One Crore and default of the Corporate Debtor has been established and the application deserves to be admitted. Application admitted - moratorium declared. Issues Involved:1. Application for initiating Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency & Bankruptcy Code (I&B Code), 2016.2. Validity and enforceability of the Debenture Trust Deed (DTD) and related security interests.3. Adequacy of security provided by the Corporate Debtor against the default amount.4. Applicability of the precedent set by a co-ordinate bench in a similar case.5. Compliance with procedural requirements under the I&B Code and related rules.Detailed Analysis:1. Application for Initiating CIRP:The application was filed by Beacon Trusteeship Limited, acting as the Financial Creditor, under Section 7 of the I&B Code against Modella Textile Industries Limited, the Corporate Debtor. The Financial Creditor claimed a total default amount of Rs.502,91,64,495/- as of 20.05.2020, with the date of default being 30.04.2019. The application included various supporting documents such as the Debenture Trust Deed, Statement of Account, and Certificate of Registration of Charge.2. Validity and Enforceability of the DTD:The Financial Creditor issued Non-convertible Debentures (NCDs) to the Corporate Debtor under a Debenture Trust Deed dated 17.11.2017. The Corporate Debtor failed to make interest payments, constituting an event of default under the DTD. The debt was secured by several properties and other securities. The Corporate Debtor argued that the Financial Creditor had adequate security and should enforce the security interest rather than initiating CIRP.3. Adequacy of Security Provided:The Corporate Debtor contended that the security provided (valued at Rs.9,06,30,00,000/-) far exceeded the claimed default amount. They argued that the Financial Creditor had multiple remedies under the DTD, including selling the mortgaged properties without court intervention. The Corporate Debtor also highlighted ongoing negotiations and agreements with real estate companies to resolve the debt.4. Applicability of Precedent:The Corporate Debtor relied on a previous judgment (Beacon Trusteeship v. Neptune Ventures and Developers) where a similar petition was dismissed on the grounds that the Financial Creditor had adequate security and could enforce it without initiating CIRP. However, the Tribunal referred to the NCLAT's decision in Rajeev R. Jain V. AASAN Corporate Solutions Private Limited, which held that the previous judgment was not a binding precedent and that the Financial Creditor had the right to initiate CIRP under Section 7 of the I&B Code.5. Compliance with Procedural Requirements:The Corporate Debtor argued that the Financial Creditor had not served a copy of the petition to the Insolvency and Bankruptcy Board of India as required. They also claimed that the Statement of Accounts was not certified per the Bankers’ Books Evidence Act, 1891. Despite these contentions, the Tribunal found that the application was complete, filed under the proper form, and that the debt amount exceeded the threshold of Rupees One Crore.Findings:The Tribunal observed that the Corporate Debtor had not disputed the claim amount or the Debenture Trust Deed. It concluded that the Financial Creditor had established a default by the Corporate Debtor and that the application for initiating CIRP was justified. The Tribunal dismissed the Corporate Debtor's reliance on the previous judgment and upheld the Financial Creditor's right to initiate CIRP under Section 7.Order:The Tribunal admitted the application for initiating CIRP against the Corporate Debtor and declared a moratorium under Section 14 of the I&B Code. The Tribunal appointed Mr. Bhrugesh Amin as the Interim Resolution Professional (IRP) and directed the Financial Creditor to deposit Rs.5,00,000/- with the IRP for expenses related to the CIRP. The Tribunal also ordered immediate communication of the order to all relevant parties and compliance reporting by the Designated Registrar.