2022 (9) TMI 1290 - Tri - Insolvency and Bankruptcy

Tribunal Admits Insolvency Application, Initiates Corporate Resolution Process

Nilkanth Dealcom Private Limited Versus Fairdeal Vintrade Private Limited

Nilkanth Dealcom Private Limited Versus Fairdeal Vintrade Private Limited - TMI Issues Involved:1. Authorization of the Financial Creditor's director to initiate action.2. Legality of the loan under the Companies Act, 2013.3. Disclosure and suppression of facts by the Financial Creditor.4. Acknowledgment and admission of debt by the Corporate Debtor.5. Limitation period for filing the petition.6. Payments made by the Corporate Debtor and their validity.7. Fabrication of documents by the Financial Creditor.8. Initiation of Corporate Insolvency Resolution Process (CIRP).Detailed Analysis:1. Authorization of the Financial Creditor's Director:The Corporate Debtor argued that the director of the Financial Creditor was not properly authorized by a Board Resolution to initiate action. However, the tribunal did not find this argument sufficient to dismiss the petition.2. Legality of the Loan:The Corporate Debtor contended that the loan provided by the Financial Creditor was contrary to the provisions of the Companies Act, 2013. The tribunal, however, focused on the existence of a financial debt rather than the legality under the Companies Act.3. Disclosure and Suppression of Facts:The Corporate Debtor claimed that the Financial Creditor failed to disclose correct facts and suppressed relevant documents, particularly regarding payments made. The tribunal noted that the Financial Creditor provided bank statements and other documents to support its claims, which were not adequately refuted by the Corporate Debtor.4. Acknowledgment and Admission of Debt:The Corporate Debtor argued that there was no acknowledgment or admission of the loan amount, and any part payment should not be construed as an admission of the entire loan. The tribunal found that the Corporate Debtor, through its previous directors, had acknowledged the debt, and repayments were made to the Financial Creditor's bank account. This acknowledgment was sufficient to establish the existence of a financial debt.5. Limitation Period:The Corporate Debtor contended that the petition was barred by limitation. The tribunal noted that the last payment was made on 27.02.2017, and the petition was filed on 13.02.2020, within the three-year limitation period. Additionally, the acknowledgment of debt in the Balance Sheet of 2019 extended the limitation period under Section 18 of the Limitation Act.6. Payments Made by the Corporate Debtor:The Corporate Debtor claimed to have repaid a total of Rs. 1,29,50,000/-, while the Financial Creditor acknowledged receiving only Rs. 70,00,000/-. The tribunal noted that even if the Corporate Debtor's contention was true, there was still a default in repaying Rs. 70,50,000/-, which was above the pecuniary threshold for initiating CIRP.7. Fabrication of Documents:The Corporate Debtor alleged that the Financial Creditor fabricated documents, particularly Annexures J and K. The tribunal found that the Financial Creditor provided a certificate from its statutory auditors confirming the authenticity of the documents. The tribunal did not find the Corporate Debtor's allegations tenable.8. Initiation of CIRP:The tribunal referred to the Supreme Court's decision in Innoventive Industries Ltd Vs. ICICI Bank, which mandates that once the adjudicating authority is satisfied that a default has occurred, the application must be admitted. The tribunal was satisfied that a financial debt existed, the Corporate Debtor defaulted in repayment, and the petition was complete in all respects. Consequently, the petition was admitted, and CIRP was initiated against the Corporate Debtor.Order:- The application under section 7 of the Insolvency and Bankruptcy Code, 2016, filed by the Financial Creditor, was admitted.- A moratorium under section 14 of the IBC was declared.- Public announcement of the CIRP was ordered.- An Interim Resolution Professional (IRP) was appointed to manage the Corporate Debtor's affairs.- The Financial Creditor was directed to deposit Rs. 3,00,000/- with the IRP for expenses related to public notice and claims.- The order was to be communicated to the relevant parties and authorities.The tribunal scheduled a follow-up for filing the progress report on 31.10.2022.