TaxTMI 
TaxTMI 
2019 (7) TMI 1724
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Bank, and authorized to assign, execute, file and proceed with the application under section 7 of the Code before the NCLT against M/s. Amrit Fresh Private Limited, a Company incorporated under the Companies Act, 1956 and having its Registered Office at 158, Lenin Sarani, 3rd Floor, Kolkata 700013 (hereinafter referred to as the Corporate Debtor). 2. It is submitted in the application that the date of incorporation of the Corporate Debtor is 3rd June, 2009 and it has authorized share capital of Rs. 10,00,00,000/- (Rupees Ten Crore Only) and paid up share capital of Rs. 8,19,27,400/- (Rupees Eight Crore Ninteen Lakh Twenty Seven Thousand Four Hundred Only). 3. It is submitted in the application that on the request of the Corporate Debtor the Financial Creditor granted loans vide sanction letter dated 20th August, 2013 for a cumulative value of Rs. 20,00,00,000/-(Rupees Twenty Crore Only) to the Corporate Debtor which included Term loan of Rs. 13,00,00,000/- (Rupees Thirteen Crore Only), Working Capital Limit of Rs. 6,00,00,000/- (Rupees Six Crore Only) and Bank Guarantee of Rs. 1,00,00,000/- (Rupees One Crore Only), and these credit facilities were duly disbursed admittedly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a about 0.90 acres, lying and situated at Mouza-Narasinghapukur, Post Office Chotojagulia, Police Station Barasat, in the District of 24 Parganas, in favour of the Financial Creditor. 9. The Financial Creditor has informed that an Original Application (OA) was filed by it before the Debts Recovery Tribunal-I, Kolkata against the Corporate Debtor and the same was numbered as OA No. 646 of 2016 and the same is stated to be pending. 10. As regards record of default with Information Utility, the Financial Creditor has submitted that the Information Utility was not functional till the date of filing of the application. 11. It is further submitted in the application that the Corporate Debtor while running its business as manufacturer and seller of all kinds of food products and dairy products, approached the Financial Creditor for the aforesaid credit facilities pursuant to which the sanction of Rs. 20,00,00,000/- was granted to the Corporate Debtor and the terms where-of were duly approved by the Board of Directors of the Corporate Debtor in its meeting held on 22nd August, 2013 and common seal of the Company was duly affixed on the Loan document in the presence of Mr. Harish B....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 16. Having gone through the application supported by all the aforesaid papers, this Tribunal issued notice to the Corporate Debtor on 22nd February, 2018 which was duly received by the Corporate Debtor who sought time to file reply on 4th April, 2018, and after filing the rejoinder by the Financial Creditor, time was sought by the Corporate Debtor for settlement. However, request for seeking further time made on behalf of the Corporate Debtor was objected to by the Financial Creditor after his pleadings were completed. The matter has been heard finally on 3rd July, 2019. The Counsel for the Financial Creditor has taken us through the contents and averments made in the application and also through various documents placed on record. While hearing the Counsel for the Corporate Debtor, the Corporate Debtor has mainly submitted that the petition is defective and cannot be accepted because the documents and bank statements enclosed with the application are in violation of the Bankers Books Evidence Act, 1891. According to him the statement of accounts filed by the Financial Creditor cannot be looked into and the Bank should be directed to amend the pleadings. 17. As per the Ld. Coun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g) of the Evidence Act. Private extracts of accounts in other cases can only be secondary evidence and unless a proper foundation is laid for adducing such secondary evidence under Section 65 or other provisions of the Evidence Act, the privately handwritten copies of alleged account books cannot by themselves be treated as secondary evidence". 20.In reply to the aforesaid submissions of the Ld. Counsel of the Corporate Debtor, the Counsel for the Financial Creditor submitted that only the Balance Sheet of the Corporate Debtor already filed with the MCA website has been relied upon by the Financial Creditor and till date the Corporate Debtor has never disputed their statement of accounts in their reply or by way of any other document or affidavit filed before this Tribunal, or even in the oral arguments advanced on behalf of the Corporate Debtor. 21.lt is further submitted by the Ld. Counsel for the Financial Creditor that the Corporate Debtor has not spoken a word about any payment having been made to the Financial Creditor, after the service of demand notice on them or filing of the application before the DRT or before this Tribunal. They have in fact shown in their Balance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ess under section 1". We are not supposed to ascertain the quantum of default. In the instant case, there is no plea of limitation. This application was filed in time before the expiry of the period of limitation. So even if there are certain errors in calculation of the debt due, or that the statement of account was not updated immediately before the filing of this application, according to us, the plea of limitation is devoid of any merit. We are on summery trial. The law is settled that "a limited inquiry cannot be converted into a full dressed trial" [Asset Reconstruction company India ltd Vs. GPT Steel Industries Ltd. [CA(AT) (Inso) No. 151 of 2019 (NCLAT). The attempt of the Ld. Sr. Counsel was to have a full dressed trial by appreciating the evidence even on minor defect, which according to us, is not to be cured because there are materials proving default, like CIBIL report, etc.. 24.An argument also was advanced contending that CIBIL report also is inadmissible because the date of incorporation of the company is shown in it does not match with the date of incorporation shown in Form-I. We do not find any force in the said submission also. The Corporate Debtor company wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the Financial Creditor (Bank of India) has been able to prove its case and we have no other option than to admit the application. This Tribunal therefore pass the following order:- ORDER i) The application filed by the Financial Creditor under Section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s. Amrit Fresh Private Limited is hereby admitted. ii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency & Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. iii) Moratorium under Section 14 of the Insolvency & Bankruptcy Code, 2016 prohibits the following:- a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal ri....