TaxTMI 
TaxTMI 
2022 (4) TMI 1000
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....rate Debtor (CD) Company i.e. Byrnihat Coal Private Limited is Rs. 1,20,00,000 (Rupees One Crore Twenty Lakh only) and the Paid-Up Share Capital is Rs. 1,17,85,000 (Rupees One Crore Seventeen Lakh Eighty-Five Thousand only). The Registered office is situated at House No. 3/1, Rajdeep Complex, First Floor, F.A. Road, Kumarpara, Guwahati-781009. 4. The Corporate Applicant submits that: 4.1 As on August 23, 2021, the Corporate Applicant has the following debts. Name of Creditor Address of the Creditor Nature of Debt Amount Outstanding (Rs.) Sharma & Sons Corporation Lal Bazar, Opp- Bharat Vikash Parishad, Jharia, Dhanbad-828111, Jharkhand Coal Purchase 15,00,000.00 R.S.H Agro Products Limited Village Ambher, 12th Mile, Jorabat, Guwahati-781023, Kamrup (M), Assam Other Liabilities 21,60,000.00 Naresh Kumar Harlalka Subham Apartment, Narayan Nagar, Guwahati-781009, Assam Advance from Director 5,10,000.00 Punjab National Bank LIC Building, Fancy Bazar Branch, Fancy Bazar, Guwahati-781023, Assam Cash Credit 6,43,84,315.89 Punjab National Bank LIC Building, Fancy Bazar Branch, Fancy Bazar, Guwahati-781023, Assam CFITL 42,63,078.00 TOTAL 7,28,17,3....
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....le with ILG Limit with a cash margin of 15 percent. The said amount was disbursed for the purpose of procurement of raw materials within India and to be issued in favour of Coal India Ltd. or other coal suppliers for procurement of coal for the purpose of trading. The Corporate Applicant had undertaken to comply with all the exchange/import trade control regulations of RBI in respect of imports under the aforesaid limit. c. The Corporate Applicant, was in extreme financial distress due to ban on coal mining imposed by the Hon'ble Supreme Court of India and in view of the same, the Corporate Applicant was unable to repay the cash credit facility granted to it. Due to the failure to honor the obligations of the Sanction Letter, the banks issued letter dated September 4, 2019 and September 10, 2019, requesting the Corporate Applicant to clear its outstanding dues vide letters dated November 5, 2019 and December 3, 2019. 4.2 The Corporate Applicant received letters dated December 3, 2019 and December 4, 2019 from the Bank, reiterating its request to the Corporate Applicant to repay its outstanding dues, and in addition to the same, informing the Corporate Applicant that the account ....
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....ees Thirty-Eight Lakh Ten Thousand Five Hundred Seventy-Four only) on September 16, 2020 to the Corporate Applicant. However, the Corporate Applicant failed to pay the outstanding dues and an amount of Rs. 42,63,078.00 (Rupees Forty-Two Lakhs Sixty-Three Thousand and Seventy-Eight only) is still payable. 4.8 On account of non-payment of due interest/installment/overdue amount as per the guidelines of Reserve Bank of India, the bank sent a recall notice to the Corporate Applicant dated April 13, 2021 ("Recall Notice") whereby the Bank stated that the Cash Credit and CFITL accounts of the Corporate Applicant have become an NPA on March 31, 2021 and the bank refused to permit the continuation of the said accounts. The cash credit account shows a debit of Rs. 7,07,96,649 (Rupees Seven Crore Seven Lakh Ninety-Six Thousand Six Hundred Forty-Nine only) and CFITL account shows a debit balance of Rs. 40,64,950 (Rupees Forty Lakh Sixty-Four Thousand Nine Hundred Fifty only) as on March 31, 2021. Accordingly, the bank requested the Corporate Applicant to pay the aforesaid amount within seven days of the receipt of the Recall Notice. The Corporate Applicant duly responded to the Recall Notice....
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....eting dated May 10, 2021 to initiate CIRP against the Corporate Applicant was issued and a resolution dated June 4, 2021 was passed to initiate corporate insolvency proceedings under section 10 of the Code. 5. It is also submitted that the major financial creditor Punjab National Bank (PNB) issued 13 (2) notice under SARFAESI Act, 2002, dated 23.04.2021 declaring the Petitioner's cash credit account, NFB account and CFITL account credit as non-performing asset. 6. The Petitioner has submitted the details of securities for Bank Credit facilities. The same are mentioned as below: Sl. No. Charge ID and date Amount Assets on which charge is created 1. 10554755 9th Feb, 2015 7,00,00,000.00 Hypothecation of inventory lying at 12th Mile stock yard, including stock in transit, book debt arising out of genuine credit sales of the company both present and future, domestic and imported consisting of coal. 2. 10247935 29th Sept, 2010 22,55,00,000.00 All that piece and parcel of Landed Property at 12th Mile, Jorabat, Mouza: Sonapur, Kamrup, Assam, covered by dag no. 121 and 120, Patta No. 28 vide sale deed no 11735 measuring 3 Bigha 3 katha 10 Lecha owned by Byrnihat Coal Pvt. Ltd....
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.... application filed by the petitioner may be treated to be denied by the respondent Bank unless any part thereof is specifically admitted hereinafter. The application filed under section 10 by the petitioner is an attempt to escape its outstanding liabilities which are due and payable to the respondent bank, by using the mechanism of the IBC in order to obtain an order of moratorium in respect of the various recovery proceedings which have been instituted by the respondent bank. 9.2 Though there is an admitted default committed by the petitioner in the repayment in the repayment of its dues, mere commission of such default is not sufficient to trigger the provisions of the IBC. The objective of the IBC is resolution and reorganization of the stressed debtors but in the case of the petitioner it is the humble submission of the bank that the business model and financial structure of the petitioner is of such nature that no feasible resolution is possible in the present case. The petition under section 10 of the IBC is thus nothing but a device to gain time to drag the recovery proceedings by pretending to pursue the relief of resolution in this Hon'ble Tribunal. 9.3 Sri Kamal Kumar ....
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....ue to the pendency of the same before this Hon'ble Tribunal. 10. The Corporate Applicant has filed a rejoinder to the reply of Respondent No. 4. The following submissions have been made by the applicant: 10.1 The Reply filed by the Respondent No. 4 is devoid of any substance and merit. The submissions made by the Respondent No. 4 are denied to the extent that they are contrary to and/or inconsistent with the averments and/or submissions made in this Rejoinder and the Application. The Corporate Applicant has filed the Insolvency Application in compliance with all the requirements under Section 10 of the Code, read with IBBI (Application to Adjudicating Authority) Rules, 2016. As per section 10(3) of the Code, the Corporate Applicant is required to comply with the following requirements, which have been duly complied. 10.2 As long as the application is complete and in line with the Code, the application under section 10 should be allowed. Therefore, the objections raised by the Respondent No. 4 are completely meritless. 10.3 The Hon'ble National Company Law Appellate Tribunal, New Delhi has held in Unigreen Global Private Limited, In re, 2017 SCC Online NCLT 1780 that if any acti....
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....endent of each other and the right to seek reliefs under the Code of the Corporate Applicant cannot be taken away merely because of pendency of proceedings under Recovery and Debts and Bankruptcy Act, 1993. 11. The Applicant has further stated that: 11.1 The Corporate Applicant thus proposes to appoint Mr. Akhil Ahuja, an Insolvency Professional, having Registration No. IBBI/IPA-001/IP-P02072/2020-2021/13213 resident at D-65, Defence Colony, New Delhi-110024 to be the Interim Resolution Professional if the said application is admitted in to CIRP by this Hon'ble Bench. The written communication from the proposed Interim Resolution Professional has been annexed 11.2 That, to the best of Applicant's knowledge, Mr. Akhil Ahuja is fully qualified and permitted to act as an insolvency professional in accordance with the Code and the associated rules and regulations. ORDER 12. Heard the Counsels for both the sides at length. This Application has been filed under section 10 of IBC by the CD seeking initiation of CIRP against itself. The Corporate Applicant and as well as the Financial Creditor have confirmed that the account of the Applicant is NPAs and the Applicant has defaulted in ....
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....rofessional proposed to be appointed as an interim resolution Professional; and iii. The special resolution passed by shareholders of the Corporate Debtor approving filing of the application. 14.3 Existence of debt is above Rupees One Crore; 14.4 Debt is due, payable and defaulted; 14.5 Default has occurred on 31.03.2021 with the major Financial Creditor to the CD R4-PNB; The FC-PNB has issued Recall Notice on 13/04/2021(notice copy at page no 114 of the application) stating the date of NPA of the Applicant account with them is 31/03/2021. 14.6 Application has been filed within the limitation period, as the existence of the debt due, payable and defaulted is on 31.03.2021 with PNB; when the Application under Section 10 of the IBC has been filed by the CD on 07.09.2021; 14.7 Copy of the Application filed before this Bench has been sent to the Financial Creditors, R4 has filed its reply and the application filed by the Corporate Debtor under Section 10 of the IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against itself; Hence, the present IB Petition is admitted with the following directions/observations. The date of admi....