TaxTMI 
TaxTMI 
2020 (10) TMI 64
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..... 36,96,240/- (Rupees Thirty-Six Lakhs Ninety-Six Thousand Two Hundred Forty) towards Bank Guarantee). However, the amount claimed to be in default is Rs. 2,15,31,062/- (Rupees Two Crores Fifteen Lakhs Thirty- One Thousand Sixty-Two only) which includes interest as on the date of default which is 10.10.2017. The application is filed by the Managing Director of the Financial Creditor Company Shri Arvindbhai Madhubhai Patel. 2. The Respondent- Corporate Debtor Company, namely Kunal Structure (India) Private Limited Ltd. was incorporated on 05.04.2006 with CIN: U45200GJ2006PTC048080. 3. The Authorised Share capital of the Respondent (CD) Company is Rs. 5,50,00,000/- (Rupees Five Crores Fifty Lakhs only) and the Paid-up Share Capital of the Respondent Corporate Debtor Company is Rs. 5,03,00,000/- (Rupees Five Crores Three Lakhs only). The Registered Office of the Corporate Debtor Company is situated at: "Mondeal Heights", B Wing, 15th Floor, Near Hotel Novotel, S.G. Highway, Ahmedabad 380 015. 4. It is stated that in December, 2011 the Superintending Engineer, Narmada Project Head Works Circle, Kevadia Colony (hereinafter referred to as "Employer"), acting for an on behalf of ....
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....rores Six Lakhs Ninety-Two Thousand Two Hundred and Forty only) qua all the said tenders with regard to the FDRs and issuance of the Bank Guarantees - 2.5% of the estimated cost of the project as set out in the Tender for the creation of FDRs and the amount payable for the issuance of bank guarantee 20% (being margin) of 5% of the estimated cost of the project as set out in the tenders. The said deposits amounting to Rs. 4,24,51,300/- (Rupees Four Crores Twenty-Four Lakhs Fifty-One Thousand Three Hundred) were placed in piecemeal during the period 18.01.2012 to 17.08.2012 by the Financial Creditor with the Corporate Debtor. 7. It is further submitted that with regard to the Case Tender and pursuant to the Contract, the Financial Creditor placed the deposit of Rs. 92,40,600/- (Rupees Ninety-Two Lakhs Forty Thousand Six Hundred Six Hundred) with the Corporate Debtor for the creation of FDR in favour of the Employer and placed deposit of Rs. 36,96,240/- (Rupees Thirty-Six Lakhs Ninety-Six Thousand Two Hundred Forty) towards the issuance of bank guarantee as security for the performance of the works under the contract. The above amounts were shown in the Balance Sheet of the Corpora....
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....cern to the Financial Creditor nor any notice has been issued by the Employer in terms of clause 4 of the Contract for noncompletion of any work. Hence the Financial Creditor is entitled to initiate Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP") against the Corporate Debtor. 13. The Petitioner has suggested the name of Insolvency Professional Shri Nesal Hasmukh Shah to be appointed, if this petition is allowed and the proposed I.R.P. has also given his affirmation / consent in writing, which is annexed with the present I.B. Petition. 14. The Respondent filed its objections and their arguments were heard. The case was heard at great length on various dates i.e. 06.07.2018, 03.08.2018, 14.09.2018, 25.10.2018, 14.12.2018, 25.03.2019, 13.06.2019, 08.08.2019, 06.09.2019, 01.10.2019, 11.10.2019, 13.11.2019, 28.11.2019 and final on 04.12.2019. 15. Observations: A. Contract Details: Relevant Paragraphs of the Contract dated 17.09.2012 Whereas, Kunal Structure (India) Pvt. Ltd. has undertaken below mentioned contract work (hereinafter referred to as the project) from The Executive Engineer, N.P. Main Canal Demand Notice. No. 1, Vadodara, (he....
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....me of completion of the Project and receipt of the final amount. This agreement, will automatically stand terminated itself as and when or after the receipt of the whole amount of the payment from the Employer and/or the concerned Department/Government. Hence it is clear that: 15.1 The work is given by the Government to the Kunal Structure (India) Pvt. Ltd., only. 15.2 Kunal Structure (India) Pvt. Ltd., needs to give Deposit / Guarantee etc to Govt, for getting the work order. 15.3 Kunal Structure (India) Pvt. Ltd., did not have the money to deposit. The Corporate Debtor requested the Financial Creditor to give the said amount to the Corporate Debtor so that Corporate Debtor could account for in its books/balance sheet and give the Deposit to the Employer. The entire funds were transferred to the Corporate Debtor through proper banking channel. 15.4 It is also clear in the contract when the interest on deposits will be received [deposit made in favour of the Employer], the Corporate Debtor will give back the interest and principal to the Financial Creditor, except the amount of TDS deducted. 15.5 It is also clear that once the w....
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.... (d) Default has occurred on 10.10.2017 (e) Petition had been filed on 06.06.2018 which is within the limitation period; (f) Copy of the Application filed before the Tribunal has been sent to the Corporate Debtor and the application filed by the Petitioner Under Section 7 of IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate-Debtor-Company. Hence, the present IB Petition is admitted with the following Directions/observations. The date of admission of this petition is 03.06.2020. 17. This Adjudicating Authority hereby appoints, as proposed, Mr. Nesal Hasmukh Shah, having Insolvency Professional Registration No. IBBI / IPA-001 / IP-P00337/ 2017- 18/10607, Email ID: [email protected], Address: 8, Mehsana Society, New Vadaj Road, Opp. Laxmi Hospital, Bhimjipura, Ahmedabad 380013 Gujarat, India as an Interim-Resolution-Professional. The Interim-Resolution-Professional is further directed to make public announcement of moratorium in respect of Corporate-Debtor-Company soon after receipt of an authenticated copy of this order and to act further as per the order/direction issued by this ....
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....inalizing the Resolution Plan for the Corporate-Debtor, the possibility of loading maximum interest at the Applicant Bank's Base Rate (BR) or BR+1% from the date of default to the date of implementation of MCLR and further from the date of implementation of MCLR till the date of approval of the Resolution Plan interest at the rate of Applicant Bank's One Year MCLR or One Year MCLR + 1% without any penal /overdue interest. 20. The Registry is hereby directed to communicate a copy of this order to the Financial Creditor, Corporate Debtor Company, the I.R.P and also to the Registrar of Companies immediately through speed post / registered post. 21. Thus the present I.B petition filed Under Section 7 of IBC stands admitted. In the matter of: CP(IB) No. 273/7/NCLT/AHM/2018 Harihar Prakash Chaturvedi, Member (J) 22. I have been benefited to read the order of Hon'ble Member (Technical) in respect of the above mentioned matter. I would, however, like to defer from the operative portion of the judgment and on the issue of maintainability of the present petition under Section 7 of the I.B. Code as Financial Creditor as well as on limitation. 23. As per the mater....
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....t there is no mandatory requirement for issuance of statutory demand notice for a petition to be filed under Section 7 in the I.B. Code. While the present I.B. petition is filed on 06.06.2018. Hence, it is time barred under Article 137 of the Limitation Act and in the light of landmark decision of Hon'ble Supreme Court and as per the decision of the Hon'ble NCLAT in the matter of C. Shivakumar Reddy Vs. Vs. Dena Bank decided on 18.12.2019, Hon'ble Supreme Court in "Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd. & Anr. In Civil Appeal No. 4952 of 2019, Vashdeo R. Bhojwani Vs. Abhyudaya Co-operative Bank Ltd. 8n Ors. Civil Appeal No. 11020 of 2018, Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd. and Ors. decided on 18.09.2019 and Sagar Sharma Vs. Phoenix ARC (P.) Ltd. wherein, their Lordships have pleased to reiterate its stand as ruled earlier in its decision in B.K. Educational Services (P.) Ltd. Vs. Parag Gupta that for filing I.B.C. application, Article 137 of the Limitation Act would attract. 25. That apart, even assuming so, the present petition is to be treated as has been properly filed under Section 9 of the I.B....