AI Drafter 
TaxTMI 
TaxTMI 
2018 (8) TMI 1892
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....rector, to file this petition on behalf of the Corporate Debtor. 3. This petition is presented u/s.10 of the IB Code with a request to trigger Corporate Insolvency Resolution Process in respect of Supraja Textiles Private Limited, hereinafter called as 'the Corporate Debtor'. 4. The Corporate Debtor is having Financial Creditors, Operational Creditors besides Statutory Dues. 5. The Corporate Debtor has committed default in payment of Rs. 16,13,67,283/-. According to the Corporate Applicant, the date of default is 28.12.2016. 6. The Corporate Applicant filed the following documents to prove the existence of default and the amount in default:- a) Copy of Form No. 8 dated 17.04.2006 for creation of Charge for Rs. 12.36 Cr. as filed with the Registrar of companies, Andhra Pradesh. b) Copy of Form No. 8 dated 03.01.2007 for creation of Charge for Rs. 15.44 Cr. as filed with the Registrar of Companies, Andhra Pradesh. c) Copy of the Certificate of Registration of Charge for creation of charge dated 03.01.2007 for Rs. 15.44 Cr. issued by The Registrar of Companies, Andhra Pradesh. d) Copy of Form No.8 dated 23.03.2008 for creation of....
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.... 19, 2017 issued by State Bank of India under Rule 8(6) of Security Interest (Enforcement) Rules, 2002. t) Copy of letter No. SAMBII/HYD/LRS/1197 dated Oct. 31, 2017 of State Bank of India, SAM Branch, Hyderabad approving One Time Settlement of Rs. 12,09,87,013/- to the Corporate Debtor. u) Copy of letter No. SAMB/HYD-II/LRS/18 dated April 02, 2018 of State Bank of India, SAM Branch, Hyderabad intimating cancellation of One Time Settlement to the Corporate Debtor. v) Copy of letter dated April 16, 2018 issued by State Bank of India, SAM Branch, Hyderabad intimating publication of e-auction sales notice dated April 13, 2018 & April 14, 2018 on fixing the date for sale of secured assets through e-auction on May 23, 2018. w) Copies of e-auction notice published in New Indian Express, Vijayawada Edition on April 14, 2018. x) Copies of e-auction notice published in New Indian Express, Hyderabad Edition on April 14, 2018. 7. The Corporate Debtor proposed the name of Mr. Manivannan J, Insolvency Professional, for appointment as Interim Resolution Professional. 8. The Corporate Applicant filed written communication, dated 02.05.2018, given....
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....ation of sale of properties through e-auction on 14.04.2018 to the Corporate Debtor. 21. It is stated by the SBI that the Corporate Debtor having full knowledge of all these proceedings, invoked the provisions of IB Code, only to stall the proceedings under SARFAESI Act. 22. It is stated by SBI that this petition is filed with a mala fide intention but not to have a Resolution Plan or for Revival of the Company. 23. Mr. Guntupalli Srinivasa Rao, who is holding 48% of the voting rights in the Corporate Debtor, filed reply, raising the following objections:- i) The management ought to have taken prior written consent of all the parties to the MOU, dated 23.12.2013, before filing this petition. ii) On account of the financial irregularities and misappropriations, committed by the present management, Guntupalli Srinivasa Rao and others moved a petition before the CLB, Chennai Bench. iii) The management of the Corporate Debtor fraudulently altered the Board of the Company by removing Mr. Guntupalli Srinivasa Rao from the Directorship, passed the resolution to file this petition. 24. Mr. Guntupalli Srinivasa Rao also stated that he is one of the Fin....
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....ther the Application is complete or not. 31. A perusal of the Petition, filed by the Corporate Debtor, discloses that it is complete in all respects except filing Special Resolution passed by the shareholders of the Corporate Debtor, as required by Sec. l0(3)(c) of the Code, that came into force with effect from 06.06.2018, by virtue of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018. 32. The material on record further discloses the existence of debt and occurrence of default. The Corporate Applicant also proposed the name of the Insolvency Professional to act as IRP and filed his written communication in Form-2. 33. The contention raised by the SBI is that this petition is a mala fide petition to prevent the proceedings under the SARFAESI Act. 34. It is settled that the pendency of any other proceeding for recovery of amount in default from the Corporate Debtor is no bar for initiation of Corporate Insolvency Resolution Process. 35. The proceedings under the IB Code are having overriding effect over all other proceedings under other Acts in view of Sec. 238 of the IB Code, more so, when there is no repugnancy between the IB Code and the SARFAESI Act. ....
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....t held that the amended Sec. 36 is applicable even for Arbitration proceedings that were initiated prior to 23.10.2015. 44. A distinction was made between the Arbitration proceedings that were initiated prior to 23.10.2015 and the Applications before Court u/sec.34 that were filed prior to 23.10.2015. 45. It is held by the Hon'ble Supreme Court that if an Application is filed u/s.34 prior to 23.10.2015, the amended Sec.36 is not applicable. If an application is filed u/s.34 on or after 23.10.2015, amended Sec.36 is applicable even though Arbitral proceedings commenced prior to 23.10.2015. 46. The Hon'ble Supreme Court further held that the amended provisions of Sec.36 should apply even if an application u/s.34 of Arbitration Act has been filed before the Arbitration Act was amended. 47. The Hon'ble Supreme Court and the Hon'ble Bombay High Court made a distinction between the vested right and existing right and further made bifurcation between arbitrate proceedings and court proceedings. 48. Prior to the amendment of Arbitration and Conciliation Act, there was an existing right to have a stay as soon as the Award is challenged u/s.34 of the Arbitratio....
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....(a) of the Income-tax Act, as amended by Finance Act, 2002 with effect from 01.04.2003. 59. In that case, the Hon'ble Supreme Court held that the amendment is clarificatory in nature. 60. The Hon'ble Supreme Court held that Explanation 4 of Section 271(c) of the Income-tax Act is clarificatory and not substantial and therefore it is given retrospective effect. 61. In that judgment, the Hon'ble Supreme Court held even if a statute does not contain a statement to the effect that the amendment is clarificatory or declaratory that it is not the end of the matter and the Court is to analyse the post or pre scheme of the statute and nature of the amendment. 62. In that judgment, the Hon'ble Supreme Court considered the aspect of imposing of penalty for concealment of negative income or loan and held it is clarificatory in nature but not substantial. 63. But, in the instant case, a condition, which is not there prior to the amendment of Sec. l0(3)(c) of the IB Code, has been introduced by the legislature by way of an Ordinance for the first time with effect from 06.06.2018, such burdensome condition, in my view, cannot be given retrospective operation. 64....
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.... where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be constructed to be prospective in operation, unless otherwise provided, either expressly or by necessary implications.' 71. Therefore, in any view of the matter in this case the petitioner need not be called upon to file a special resolution passed by the shareholders of the Company in order to admit this petition if it is otherwise complete. 72. In view of the above discussion there are no grounds to reject this petition. 73. This petition deserves to be admitted and accordingly it is admitted. 74. This Adjudicating Authority is appointing the Insolvency Professional, Mr.Manivannan J, Plot No. 53B, 8/330, Vishalakshi Nagar, Fourth Cross Street, Santhosapuram, Chennai-600 073, Tamil Nadu. Email address: [email protected] REGN. NO. IBBI/IPA-002/IP-N00534/2017-2018/11695 as Interim Resolution Professional u/sec. 13(l)(b) of the code. 75. Section 13 of the Code says that after admission of the application unde....