TaxTMI 
TaxTMI 
2018 (6) TMI 947
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....entirety/majority of the shareholding of the 'Corporate Debtor' on 23rd October, 2017 for a total consideration of Rs. 126.73 crores. 2. According to the 'Quinn Logistics India Private Limited' ('Financial Creditor'), 'Mack Soft Tech Private Limited' ('Corporate Debtor') become subsidiary Company of the 'Financial Creditor'. During the period 2007- 2010, the 'Financial Creditor' disbursed an interest free unsecured loan of Rs. 62.90 crores to the 'Corporate Debtor' for development of 'Q-City'. Such interest free loan at the relevant time was permitted under the provision of Section 327A (8) of the Companies Act, 1956. 3. 'Mack Soft Tech Private Limited' ('Corporate Debtor'), 'Quinn Logistics India Private Limited' ('Financial Creditor'), 'Quinn Investments Sweden AB' and 'Quinn Logistics Sweden AB' were all part of a group of companies controlled by an Irish businessman, Mr. John Sean Ignatius Quinn, and his family ("Quinn Family"). They were part of a group of Companies known as the "Quinn Group". In April 2011, the "Quinn Group" defaulted in repayment of loans amounting to 2.8 billion Euro taken from one Anglo Irish Bank Ltd. (now known as Irish Bank Resolution Corporation ....
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....d'- ('Financial Creditor'). 8. Having not received the amount, the 'Quinn Logistics India Private Limited'-('Financial Creditor') filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") for initiation of the 'Corporate Insolvency Resolution Process' against the Mack Soft Tech Private Limited- ('Corporate Debtor'). 9. On notice from the Adjudicating Authority (National Company Law Tribunal), Hyderabad Bench, the 'Mack Soft Tech Private Limited'- ('Corporate Debtor') raised its objections. However, objections were not accepted by the Adjudicating Authority. By impugned order dated 11th August, 2017 passed in CP (IB) No. 97/7/HDB/2017, admitted the application, order of 'Moratorium' was passed and 'Interim Resolution Professional' has been appointed with certain directions. 10. Learned Senior Counsel for the Appellant- 'Mack Soft Tech Private Limited' ('Corporate Debtor') submitted that the Respondent- ('Financial Creditor') was the parent company of the 'Mack Soft Tech Private Limited'- ('Corporate Debtor'). The books of account of the Appellant- ('Corporate Debtor') used to be maintained by the Respondent- ('F....
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...., they moved an application under Section 7 of the 'I&B Code' on the ground that the 'Corporate Debtor' defaulted in payment of debt of Rs. 62.9 Crores. 17. In "M/s. Innoventive Industries Ltd. Vs. ICICI Bank & Anr.− 2017 SCC OnLine SC 1025", the Hon'ble Supreme Court raised the question of maintainability of the appeal by the 'Corporate Debtor' after initiation of 'Corporate Insolvency Resolution Process' and observed: "11. Having heard learned counsel for both the parties, we find substance in the plea taken by Shri Salve that the present appeal at the behest of the erstwhile directors of the appellant is not maintainable. Dr. Singhvi stated that this is a technical point and he could move an application to amend the cause title stating that erstwhile directors do not represent the company, but are filing the appeal as persons aggrieved by the impugned order as their management right of the company has been taken away and as they are otherwise affected as shareholders of the company. According to us, once an insolvency professional is appointed to manage the company, the erstwhile directors who are no longer in management, obviously cannot maintain an appeal on ....
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....rove the existence of financial debt, the amount and the date of default", as it required in Part-V at Serial No.8 of the statutory Form-1. The dates on which the alleged debt was disbursed or payments were made was not disclosed in the statutory Form-1. 23. It was submitted that the Applicant in terms of Section 7(3) of the 'I&B Code' is required to provide clear proof of default, either maintained by an Information Utility or any other additional documents to prove default of the 'financial debt', which they failed to provide. 24. We have heard the parties and also perused Form 1 (at Page No. 68). Part IV therein (at Page 71) relates to "Particulars of Financial Debt". The Respondent- ('Financial Creditor') has shown the amount disbursed by way of payments made for, and on behalf of the Appellant- ('Corporate Debtor') between October 2007 and July 2010. In support of which the table enclosed at Annexure A-6. The amount claimed to be shown as Rs. 62,90,45,905/- and the date of default has been shown as 15th June, 2017, when the 'Corporate Debtor' failed to repay the outstanding loan amount in spite of notice. A working of the computation of the amount and days of default has....
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...., the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt ma....
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....tion and no laches on the part of the Applicant, the Applicant can explain the delay. Where there is a continuing cause of action, the question of rejecting any application on the ground of delay does not arise. 70. Therefore, if it comes to the notice of the Adjudicating Authority that the application for initiation of 'Corporate Insolvency Resolution Process' under section 7 or Section 9 has been filed after long delay, the Adjudicating Authority may give opportunity to the Applicant to explain the delay within a reasonable period to find out whether there are any laches on the part of the Applicant." 32. In the said case, this Appellate Tribunal also noticed the alternative submissions regarding application of Limitation Act and held as follows: "58. Even if it is accepted that the Limitation Act, 1963 is applicable, though we have held otherwise, in that case also application under Section 7 or 9 or 10 cannot be rejected on the ground that the application is barred by limitation for being filed beyond three years for following reasons. Except Article 137 of Part II i.e. 'other applications', as quoted below, no other provisions of Limitation is app....
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.... 38. For the reasons aforesaid, we are not inclined to interfere with the impugned order dated 11th August, 2017 passed by the Adjudicating Authority in CP (IB)No. 97/7/HDB/2017. All other connected appeals being preferred by the other shareholders of the 'Corporate Debtor' against same very impugned order dated 11th August, 2017 also fail for the reasons aforesaid. All these appeals are accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs. ============= Document 1 ANNEXURE-B Jorchenbrate KRAMA CHANDRAVATHI SVLNO. 27/99, R.L.NO. 6-3-387, DULY COMPLEX BESIDE BANJARA DURBAR HOTEL PUJAGITTA ROAD HYDERABAD-82 à¤à¤¾à¤°à¤¤ 77568 41 पà¥à¤°à¤¦à¥‡à¤¶ 125432 MAR 01 2007 11:39 ACT R.0000500 PB5432 COMPANY LIMITED BY STAMP DUTY ARDHRA PRADESH MEMORANDUM OF ASSOCIATION OF Quinn Logistics India Private Limited 1. The name of the Company is Quinn Logistics India Private Limited. II. The Registered Office of the Company is situated in the State of Andhra Pradesh within the jurisdiction of the Registrar of Companies at Hyderabad. ....