TaxTMI 
TaxTMI 
2021 (6) TMI 836
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....o ROC's letter No. NCR/CN/4969/2005 dated 08.11.2005. 3. The Registered Office of the company is situated in West Bengal. The objects of the company are enumerated in the Memorandum of Association (page 17) and Articles of Association (page 30). 4. The respondent/company is established with an object to provide financial services of investment and advice as mentioned in the Memorandum and Articles of Association (ANNEXURE R-2/page 16 of the Counter). 5. The present application is filed by the financial creditor/Messrs Simplex Infrastructure Ltd. against Corporate Debtor/Messrs Mahendra Investment Advisors Pvt. Ltd. for a default as under: Total amount of debt granted...Rs. 50000000/- (Rupees five crores only) Amount claimed to be in default and the date on which the default occurred: 6. Particulars of financial debt as claimed by the applicant in Part-V, Form-1 is as under: 6.1. The applicant has approached the Hon'ble High Court of Calcutta against the respondent/Corporate Debtor and the Hon'ble High Court decreed the claim of the Financial Creditor for a sum of Rs. 10,83,55,294/- and directed the same to be paid by the Corporate Debtor in 20 EMIs. In default th....
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.... to the provisions of the I & B Code, (para 6) 7.3. It is further submitted that CIRP process can be initiated only against a corporate person as defined under the Act and under section 3(7) of the I & B Code, CIRP cannot be initiated against any financial service provider as they are exempted under the Code. Said section is reproduced hereunder: "3. Definitions. - In this Code, unless the context otherwise requires,- (7) "corporate person" means a company as defined in clause (20) of section 2 of the Companies Act, 2013 (18 of 2013), a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider;" 7.4. It is submitted that the respondent is engaged in Non-Banking Finance business and the applicant is a NBFC. (para II (8) 7.5. It is further submitted that the applicant/company entered into a contract dated 12.04.2010 with the respondent's group company, viz. M/s. Gati Infrastructure Bhasmey Power Pvt. Ltd., for the purpose of executing a....
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.....10. The respondent denies the contents of Form-1, Part-IV of the application. The applicant has issued Inter-corporate Deposit only as an alternative to the security/guarantee, which is to be issued as contractual obligation under the contract entered between the group's company of the respondent and the applicant. Thus, there is neither debt nor default to initiate CIRP. Even otherwise the respondent being NBFC does not come under section 7 of IBC. (para 16) 7.11. It is alleged that the applicant is trying portray the deposit of amount towards Performance Bank Guarantee under the contract dated 12.04.2017 (sic.) with respondent's group company, as a separate transaction of Inter-Corporate Deposit' (ICD). The applicant has not explained why the Financial Creditor has not taken action against the respondent for non-payment of alleged ICD and interest thereon for six years, (para 18) 7.12. It is further submitted that an exception is carved out while enacting the I & B Code that Financial Service Provider are kept outside the purview of the Code. It is submitted that the Code cannot be applied to Financial Service Providers including non-banking financial companies and....
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....tion or registration given by RBI recognising Corporate Debtor as financial service provider. Therefore, the Corporate Debtor cannot take any protection on the ground that it is NBFC and objects of the company is also to do financial services." 10. AFFIDAVIT DATED 17.11.2020/18.11.2020 FILED BY THE PETITIONER. 10.1. It is submitted that the Hon'ble Calcutta High Court has restored the appeal to the file on 13.02.2020 on an application filed by the respondent/Corporate Debtor vide GA No. 72 of 2020 in APD No. 474 of 2017, while no stay was granted on the impugned decree. During the pleadings of restoration application, the respondent/Corporate Debtor has paid Rs. 25 lacs to the petitioner on 17.02.2020 by Demand Draft. A copy of order dated 13.02.2020 passed by the Hon'ble Calcutta High Court is at page 5 of this Affidavit. (para 7) 10.2. The Hon'ble Calcutta High Court of Calcutta vide order dated 24.03.2020 (page 7 of this Affidavit) passed in GA 791 of 2020 with APD 474 of 2017, CS 10 of 2017 observed as under: "Since the operation of the decree has not been stayed, it is open to the respondent (Simplex Infrastructure Limited) to levy execution and seek the neces....
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.... petitioner Vs. GIBPPL on one hand and between the petitioner/Financial Creditor Vs. respondent/Corporate Debtor on the other. (d) ICD by respondent/Corporate Debtor with petitioner/Financial Creditor is never an alternative security to guarantee the performance by petitioner/Financial Creditor in the project assigned by GIBPPL. 13. UPDATED BRIEF WRITTEN SUBMISSIONS DATED 18.12.2020/21.12.2020 FILED BY THE PETITIONER. The contents of these submissions are reiteration of earlier submissions, viz. amount reinvested from time to time, proceedings before the Hon'ble Calcutta High Court, petition being time-barred, Corporate Debtor being NBFC, etc. Such contentions were discussed in the preceding paras. 14. UPDATED BRIEF WRITTEN SUBMISSIONS DATED 23.02.2021 FILED BY THE PETITIONER. No new contention/submission could be found in these Written Submissions. The contents of these submissions are reiteration of earlier submissions, viz. amount reinvested from time to time, proceedings before the Hon'ble Calcutta High Court, petition being time-barred, Corporate Debtor being NBFC, etc. Such contentions were discussed in the preceding paras. WRITTEN ARGUMENTS DATED 10.03.2021/12....
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....000/-, on 04.11.2011, as claimed by the petitioner. Whereas, according to the respondent/Corporate Debtor, the said amount was Inter-Corporate Deposit for a period of three months deposited towards Performance Bank Guarantee under the impugned contract. The Corporate Debtor also claimed that the said amount of Rs. 5 crores provided as security. Hence transaction dated 04.07.2011 even though termed as 'Inter Corporate Deposit', (ANNEXURE R5, page 41 to the Counter) the same is taken as security furnished by the applicant for execution of the contract dated 12.04.2010. We observe that the respondent/Corporate Debtor had acknowledged balance confirmation vide the letters dated 01.04.2013, 01.04.2014, 01.04.2015 and 01.04.2016 issued by the petitioner/Financial Creditor, for the alleged first, second, third and fourth defaults, which are annexed at Annexure I(R) (page 100), Annexure I(m) (page 101), Annexure I(n) (page 102) and Annexure I(o) (page 103) of the petition. Said acknowledgements read that, "I/We confirm and certify that the above statement of A/c received from you is true and correct" Such certification by the respondent/Corporate Debtor can be considered as an a....
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....nancial Creditor is able to establish the debt and default. Therefore, the petition is required to be admitted against the Corporate Debtor. After going through the documents filed by the petitioner we are of the view that the petition is liable to be admitted against the Corporate Debtor. The petition is accordingly admitted. 22. In the light of the fact that the respondent/Corporate Debtor has acknowledged the debt, confirmed and certified that the Statements of Accounts received by the Corporate Debtor from the petitioner are true and correct as can be seen from the documents at Annexure I(R) (page 100), Annexure I(m) (page 101), Annexure I(n) (page 102) and Annexure I(o) (page 103) of the petition. The present petition, therefore, deserves admission. ORDER 23. Hence, the Adjudicating Authority admits this Petition under Section 7 of IBC, 2016, declaring moratorium for the purposes referred to in Section 14 of the Code, with following directions:- (A) The Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the Corporate Debtor including execution of any judgment, decree or order in any court of law, Tribunal, arbitration p....