TaxTMI 
TaxTMI 
2020 (7) TMI 533
X X X X Extracts X X X X
X X X X Extracts X X X X
....corporated under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. The application has been filed by the duly Authorised Officer, Shri Manoj Kumar, Assistant General Manager, Navlakha Chouraha, A. B. Road, Indore, Madhya Pradesh. 2. The respondent-corporate debtor (CD) company, namely Pithampur Poly Products Ltd., was incorporated on July 28, 1994 with CIN : L25202MP1994PLC008513. 3. The nominal share capital of the respondent (CD) company is Rs. 6,00,00,000 (rupees six crores only) and the paid-up capital of the company is Rs. 4,87,40,000 (rupees four crores eighty seven lakhs forty thousand only). The registered office of the corporate debtor-company is situated at : Plot No. 115, Sector-ITI, Industrial Area Pithampur, District-Dhar, Madhya Pradesh. 4. The main objects of the company, by which the respondent (CD) company is incorporated, are mentioned in the memorandum of association which are briefly mentioned as : "To carry on the business of manufacturers, producers, processors importers, exporters, buyers, sellers, and dealers in, flexible and other packaging material including plastic, paper, decorative, printing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ties including guarantees which was duly accepted/acknowledged by the corporate debtor and mortgagor/guarantors. Mortgage of the property has been created on July 14, 1995 (page No. 49 of the paper book). 7. The corporate debtor has defaulted payment and the date of default is May 1, 2000 as stated by the petitioner-bank (page Nos. 45-47 of paper book). CIBIL Report (page No. 98 to 119 of the paper book) has been filed by the bank which confirms that the account is in default. 8. The statements of accounts of the corporate debtor have been filed and the petitioner-bank has submitted a certificate to this effect under the Bankers' Books Evidence Act, 1891. (Page No. 127 of paper book). The petitioner-bank has claimed their total dues of Rs. 2,87,87,58,545.91 ps (rupees two hundred eighty seven crores eighty seven lakhs fifty eight thousand five hundred forty five and ninety one paisa only) as on August 8, 2018. 9. The petitioner-bank, in support of its contentions has annexed the details of financial debt, records and evidences of default including copies of all the sanction letters, the workings showing the amount claimed to be in default and its calculation in tabular....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erred the CIBIL report filed with their application which confirms the debt is in default. The Registrar of Companies report filed by them is referred to in support of the charge created in their favour by them. 14. The matter was taken up and heard both sides by this Bench on September 11, 2018, October 29, 2018, December 7, 2018, January 11, 2019, February 22, 2019, April 16, 2019, June 19, 2019, July 23, 2019, July 30, 2019, August 13, 2019, September 18, 2019, October 3, 2019, November 6, 2019 and November 21, 2019. The counsels of the petitioner and the respondent were present and put forth their submissions before the Bench. 15. On February 21, 2019 counsel of the corporate debtor submitted application to the Adjudicating Authority containing 6 pages for taking on record of further developments/documents. It is submitted as under : 15.1 The corporate debtor hereby submits that it has submitted an one-time settlement proposal to the present financial creditor vide its application dated January 14, 2019, regarding settlement of account and finally arriving at Rs. 3.725 crores details are as under : Rs. Towards term loans 1, 2 and 3 50,00,000 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of the amounts as above. (g) This offer is a joint offer along with Pithampur Poly Products Ltd. for Rs. 3.865 crores, thus making a total of Rs. 5.615 crores. Rs. 1.00 crore has been deposited by Mr. Pawan Singhania in "no lien account". This offer is subject to accepting both company's one-time settlement by the bank. (h) It is stated that they will withdraw all cases from all courts, Tribunals or in any other legal platforms and similarly bank will also withdraw all cases from all courts, Tribunals or in any other legal platforms. It is stated that they have arranged funds from the investor who would not be available after February 25, 2019. Hence, they have requested the financial creditor to approve the one-time settlement and oblige. 15.4 The corporate debtor further submits another letter on February 18, 2019 about their "one-time settlement" offer stating that this has reference to the one-time settlement proposals submitted by the Pithampur Poly Products Ltd. and Fairdeal Marwar Garages P. Ltd. They have requested the financial creditor to try and do the one-time settlement so that the matter can be closed once for all. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of its dues from the corporate debtor. Thereafter, the hon'ble High Court on March 7, 2018 vacated the stay and permitted the applicant to take appropriate steps for recovery of the outstanding amount in accordance with law. 17.2 It is submitted that at this juncture it is very crucial to note that the hon'ble apex court in the case of Innoventive Industries Ltd v. ICICI Bank [2017] 205 Comp Cas 57 (SC) ; [2018] 1 SCC 407, has very categorically discussed and held that (page 87 of 205 Comp Cas) : "The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins". Therefore, the moment the stay was vacated by the hon'ble High Court, the debt for which the corporate debtor had earlier defaulted, now again became due and payable. The same not being paid again, there lies a fresh cause of action. 17.3 It is submitted that since there arose a new cause of action after the stay was vacated by the hon'ble High Court, the applicant approached this hon'ble Bench on August 21, 2018 under section 7 of the IBC at earliest for initiation of the corporate insol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esolution process because the nature of remedy being sought for under the provisions of the I and B Code is "Remedy in Rem" in respect of the CD. 19. The petitioner-bank has suggested the name of the insolvency professional to be appointed, if this petition is allowed and the proposed insolvency resolution process has also given his affirmation/consent in writing, which is annexed with the present IB petition. Observations 20. It is also found, that the petitioner-bank has submitted the documents duly executed by the corporate debtors and guarantors along with a certificate under the Bankers' Books Evidence Act, 1891, in support of their IB petition for initiation of corporate insolvency resolution process. 20.1 The term loans/CC facilities was sanctioned and released by the petitioner-bank and the same were availed by CD, Pithampur Poly Pro ducts P. Ltd. The charges have been filed by the CD with the Registrar of Companies, Gwalior in favour of the petitioner-bank on January 22, 1996 and modified on February 9, 1999. Charge certificate have been issued by the Registrar of Companies, Gwalior. 20.2 The CD has defaulted in making repayment of term loan/....
X X X X Extracts X X X X
X X X X Extracts X X X X
....osed a name of resolution professional to act as an interim resolution professional (IRP) for initiation of the CIRP. ORDER 21. Considering the material papers filed by the petitioner-bank and the facts mentioned in paragraph Nos. 20, 20.1, 20.2, 20.3, 20.4, 20.5, 20.6, 20.7, 20.8 and 20.9 this Adjudicating Authority is satisfied that, (a) The corporate debtor availed the loan/credit facilities from the financial creditor ; (b) Existence of debt is above Rs. one lakh ; (c) Debt is due ; (d) Default has occurred on May 1, 2000 ; (e) The petition has been filed within the limitation period as entire matter entangled in the court cases and clear cause of action arouse only after vacation of the stay by the hon'ble High Court on March 7, 2018. Both the corporate debtor and the guarantors are acknowledging the debts by offering repeated one-time settlement proposals after the application is filed before the Adjudicating Authority on August 21, 2018. Charges filed in the Registrar of Companies has not been satisfied. (f) Copy of the application filed before the Tribunal has been sent to the corporate debtor and the app....