TaxTMI 
TaxTMI 
2020 (8) TMI 575
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....HAYA, J. The Appellant Sri Munisuvrata Agri International Limited/ Corporate Applicant moved an application under Section 10 of the of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') for initiating 'Corporate Insolvency Resolution Process' for it on the ground that it could not conduct the business due to RBI Circular dated 13th March, 2018. 2. In the said application, number of objections were filed by different parties challenging the maintainability. The Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata by impugned order dated 15th November, 2018 accepted the objections and allowed the applications preferred by the Objectors-Respondents and dismissed the application under Section 10 of the I&B Code. The Adjudicating Authority has held that in absence of any decision of the shareholders, the application under Section 10 was not maintainable and the Appellant failed to prove existence of default. 3. The case of the Appellant is as follows: - "9. The corporate debtor, having lost opportunities for export contracts to be executed/ implemented, and having faced with difficulties in doing business due ....
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....amount claimed, has been filed before the Calcutta High Court by the Corporate Debtor. 05 Ajit Patni Kumar 07/09/2015 95,92,564 Annexure A-18 06 Gati Kinetsu Express Pvt. Ltd. 31/12/2014 2,11,991/- Annexure A-19 07 Income Tax Dept. (Assessment Years) a) 2007-08 b) 2008-09 c) 2009-10 d) 2009-10 e) 2010-11 f) 2011-12 g) 2012-13 h) 2010-11 i) 2011-12 j) 2012-13 k) 2013-14 l) 2014-15 m) 2015-16 n) 2016-17 31/03/2014 22/03/2014 19/12/2011 08/09/2016 28/03/2013 31/03/2014 31/03/2015 31/12/2017 31/12/2017 31/12/2017 31/12/2017 31/12/2017 31/12/2017 31/12/2017 2,06,852,369/- 41,188,240/- 1,59,695,650/- 38,771,310/- 49,618,590/- 34,920,250/- 448,960/- 13,92,378,970/- 48,421,840/- 95,421,840/- 16,908,580/- 1,07,127,920/- 9,606,950/- 702,377/- Demand notices raised by the IT authorities upon the Corporate Debtor for the A.Y. 2010-11 to 2016-17 show a sum of Rs. 1,67,05,21,949/- An appeal was filed by the Corporate Debtor to challenge the said demand, wherein an order was passed by the Commissioner of Income Tax, Kolkata dated March 16, 2018 (Annexure A- 14) which ordered the Company to pa....
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....rporate Applicant herein) and moved an application under Section 10 of the I&B Code with an ulterior and malicious motive and to defraud its creditors. 6. The other application was filed by Swiss Singapore Overseas Enterprises Pvt. Ltd., a Singaporean Company, requesting for leave to intervene alleging that the application under Section 10 was filed with malicious intent to defraud its creditors. It alleged that Singapore International Arbitration Centre passed a partial award dated 20th February, 2013 and a final award dated 10th April, 2013 in relation to dispute between the parties, and therefore, thereafter filed execution of the two awards before the Hon'ble Calcutta High Court being E.C. No.322 of 2013 and E.C. No.353 of 2017. It was further alleged by Swiss Singapore Overseas Enterprises Pvt. Ltd. that the 'Corporate Debtor' had changed its name from LMJ International Pvt. Ltd. to Sri Munisuvrata Agri International Ltd. and also changed its registered address surreptitiously without intimating the creditors and to ensure that 'Corporate Insolvency Resolution Process' is initiated against itself without informing them. 7. Two Shareholders of the 'Corporate Applicant' (A....
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....ion filed under Section 10 by the 'Corporate Debtor' on the ground that default was committed. The Bank of Baroda, who is the lead banker of the Consortium of Banks did not oppose the said application. 11. It is also brought to our notice that pursuant to the Demand Notice under Section 13(2) of the SARFAESI Act, 2002, on 9th July, 2018 the default having been committed, the account of the Appellant was declared NPA. Since the amounts were not paid, the Bank of Baroda, as a lead Bank has moved application under Section 7 of the I&B Code, 2016 for initiation of 'Corporate Insolvency Resolution Process' being CP (IB)-1541(KB)/2018. 12. Sleepwell Industries Company Limited (Respondent No.11) brought to our notice that name of LMJ International Limited was suddenly changed on 23rd April,2018 to "Srimunisuvrata Agri International Limited" ('Corporate Applicant'). The Registered Office was changed on 26th April, 2018 from LMJ House, 15-B, Hemanta Basu Sarani, Kolkata - 700001 to 16, British India Street, 2nd Floor, Kolkata - 700069, while other Companies are still running from LMJ House. It is further stated that immediately after change of Registered office on 26th April, 2018, th....