TaxTMI 
TaxTMI 
2021 (8) TMI 1298
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....apara Branch having address at Parlay Residency, Tripura Road, Guwahati PIN- 781022. 2. The Respondent Corporate Debtor (CD) Company, namely Nayak Infrastructure Private Limited was incorporated on 19.12.2007 with CIN: U74210AS2007PTC008539. 3. The nominal share capital of the Respondent (CD) Company is Rs. 20,00,00,000.00 (Rupees Twenty Crores only) and Paid up share capital of Rs. 16,36,00,000.00 (Rupees Sixteen Crores Thirty Six Lakhs only). The Registered Office of the Corporate Debtor Company is situated at: Swarupananda Road, Lumding, Dist. Nagoan, Assam-782447. 4. The total amount of default is Rs. 88,99,06,621.07 (Rupees Eighty Eight Crores Ninety Nine lakhs Six Thousand Six Hundred Twenty One and Seven paise only) as on 30.11.2020 and BG (Performance guarantee) outstanding (Live) Rs. 10,08,56,147.00 (Rupees Ten Crores Eight lakhs Fifty Six Thousand One Hundred Forty Seven only). Sl. no B.G Bond Nos. Date Amount (Rs.) 1 0994518BG0000147 29.01.2018 1,51,90,820.00 2 0994518BG0000218 22.10.2018 1, 04, 69,279.00 3 0994518BG0000219 22.10.2018 1,81,61,500.00 4. 0994518BG0000015 14.03.2019 2,04,64,568.00 5 ....
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....admal, Mutation Khata No. 126/675, Plot No. 850/1701 under Sale Deed No. 10861301183 dated 22.04.13 5) All the piece and parcel of land comprising and Area of 0.150 Decimals, Kisam- Gharbari land situated in Mouza- Badmal, District/Tehsil- Jharsuguda and P.S- Badmal, Mutation Khata No. 126/493, Plot No. 850/2077 under Sale Deed No. 10861301183 dated 22.04.13 6) A plot of land measuring 1 katha 2 leches (2.94 Ares) along with a RCC building standing therein covered by Dag No. 976 (New) of KP Patta No. 811 (New), Sahar Guwahati Part 2 under Mouza Guwahati in the District of Kamrup Assam under Registered Sale Deed no. 8435 of 2010 dated 16.12.2010 7) A plot of land measuring 0.105 Decimal bearing Unit No. 20, Khatta No. 321 corresponding to mutation Khatta No. 1133/3242 plot No. 196/2276, Kisam- Dharabari, Mouza- Bhubaneshwar Shar, Jagmara with a RCC building standing there over under Registered Sale Deed no. 1113180457 dated 23.05.2018. 8) The front portion of the fourth floor numbered as Unit 4 "A" with super built up area of 2000 sq. ft. situated in the R.C.C. building known as "HEMSEM COMPLEX" covered by Holding No. 9 in ward no. 28 of Guwahati Municipal Corporation st....
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....ely 'Harihar House bearing Flat no 3D with proportion share of land measuring 0.4 Are standing over a plot of land measuring 2 kathas 15 lechas of Dag Nos. 746, 752,753, 754,755,756 (old), New Dag No. 754, KP Patta No. 643 of Village Sahar Ulubari, under Mouza Ulubari, District Kamrup, Assam, under registered sale no. of 3139 of 2011 dated 18.04.2011 and is bounded by: North: Putuli Choudhury South: Flat No. 3A East: Flat No. 3C West: Road 11)A plot of land measuring 2 Kathas 10 Lechas covered by Dag No. 169 of Patta No. 86 of revenue Village- Lumding Mouza- District, P.S and Sub-register Office Nagoan, within the Jurisdiction of Nogoan Revenue Circle, under Registered Sale Deed No. 504 of 2009 dated 05.04.2013 and is bounded by:- North: Ratan Sarkar South: Bhajan Singh East: Government Road West: Shyamsundar Das 12)A plot of land measuring 1 Bigha 16 Kathas covered by 2nd R.S Patta No. 42, Dag No. 87, comprising East- West measuring 315'ft 6'' Inch. In the Northern Side & 322'ft. in the Southern Side, and North-South measuring 82'ft. 6'' inch In the Eastern Side and 80'ft in the Western Side, District Ca....
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....claim, the financial Creditor has submitted the Statement of Accounts and Certified Entries in a Bankers Book in accordance with the Bankers Books Evidence Act, 1891 (18 of 1891), which proves the claim of the Financial Creditor against the Corporate Debtor. 8. The Financial Creditor, in support of its contentions has annexed the details of Financial Debt, records and evidences of default including copies of all sanction letters, statement of accounts showing the amount claimed to be in default and its calculation from and as on 28.01.2020 and are continuing as NPA till date. 9. The Financial Creditor, to substantiate its claim has also enclosed the following documents:- 1. Sanction letter dated 19.09.2007 (page 18) Annexure I-1. 2. Supplemental agreement of loan for increase in overall limit dated 20.09.2007 executed by the Corporate Debtor and Personal Guarantor (pages 19- 26) Annexure I-2. 3. Supplemental agreement for Hypothecation of Goods and assets for increase in the overall limit dated 20.09.2007 executed by the Corporate Debtor and Personal Guarantor (pages 27-31) Annexure I-3. 4. Supplemental deed of guarantee for increase in ove....
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.....2009 executed by the Corporate Debtor wherein the existing limit of Rs. 31,44,00,000.00 was enhanced to Rs. 34,64,00,000.00 under the following heads: Cash Credit Rs. 8,00,00,000.00; Term loan Rs. 1,44,00,000.00 ; Term loan 2 Rs. 3,20,00,000.00; Bank Guarantee: Rs. 22,00,00,000.00 (Pages 151-159) Annexure I-17. 18. Supplemental Agreement of hypothecation of goods and assets for increase in overall limit dated 20.07.2009 executed by the Corporate Debtor (pages 160- 165) Annexure I-18. 19. Supplemental Deed of guarantee for increase in overall limit dated 20.07.2009 executed by the Personal Guarantor (pages 166-172) Annexure I-19. 20. Letter regarding grant of individual limit within the overall limit dated 20.07.2009 (pages 173-175) Annexure I-20. 21. Sanction letter dated 29.09.2010 (pages 176-186) Annexure I-21. 22. Board Resolution of corporate debtor dated 29.09.2010 (pages 187-188) Annexure I-22. 23. Supplemental Agreement of loan for increase in overall limit dated 29.09.2010 executed by the Corporate debtor wherein the existing limit of Rs. 34,64,00,000.00 was enhanced to Rs. 41,50,00,000.00 (pages 189-196) Annexure I-23.....
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....276) Annexure I-39. 40. Board resolution dated 27.03.2014 of corporate debtor along with Revival letter reviving the earlier documents dated 25.03.2014 (pages 277-279) Annexure I- 41. Arrangement letter dated 19.01.2016 executed by the Corporate debtor and the personal guarantors for the limit if Rs. 97,50,00,000.00 (pages 280-303) Annexure I-41. 42. Board resolution of Corporate debtor dated 22.01.2016 (pages 304-305) Annexure I-42. 43. Letter regarding grant of individual limit within the overall limit dated 04.02.2016 (pages 306-309) Annexure I-43. 44. Supplemental agreement of loan for increase in overall limit dated 17.02.2016 executed by the Corporate Debtor (pages 310-332) Annexure I-44. 45. Supplemental agreement of Hypothecation of goods and assets for increase in overall limit dated 17.02.2016 executed by the Corporate Debtor (pages 333- 342) Annexure I-45. 46. Supplemental deed of guarantee for increase in overall limit dated 17.02.2016 executed by the personal guarantor (pages 343-349) Annexure I-46. 47. Omnibus counter guarantee dated 17.02.2016 executed by the corporate debtor (pages 350-353) Anne....
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....btor (pages 500-502) Annexure I-63. 64. Board resolution dated 13.11.2017 of Corporate Debtor (pages 503-505) Annexure I-64. 65. Working Capital Consortium Agreement executed by the Corporate Debtor and the Consortium Leader and Members (Financial Creditor herein as the Lead bank) (Bank of India and Punjab national bank as the Members Bank) dated 13.11.2017 for the limit of Rs. 1,49,50,00,000.00 (pages 506-547) Annexure I-65. 66. Letter of authority to lead bank (pages 548-549) Annexure I-66. 67. Joint deed of hypothecation dated 13.11.2017 executed by the Corporate Debtor (pages 550-574) Annexure I-67. 68. Inter-se Agreement executed between members of the Consortium dated 13.11.2017 (pages 575-590) Annexure I-68. 69. Deed of Joint and Several personal Guarantee dated 13.11.2017 executed by the personal guarantors (pages 591-604) Annexure I-69. 70. Omnibus counter Guarantee dated 13.11.2017 executed by the personal guarantors (pages 605-607) Annexure I-70 71. Sanction letter dated 30.06.2018 executed by the Corporate debtors and Personal Guarantors (pages 608-626) Annexure I-71. 72. Board resolution d....
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....xure I-89. 90. Equitable mortgage by deposit of title deed being Sale deed no. 1113180457 (pages 823-834) Annexure I-90. 91. Valuation of the aforesaid property (being Sale Deed No. 1113180457) Rs. 3,54,59,098.00 (pages 835-845) Annexure I-91. 92. Letter of Confirmation of mortgage by deposit of title deeds executed by Corporate Debtor (pages 846-849) Annexure I-92. 93. Equitable mortgage by deposit of title deed being Sale Deed no. 3721 (pages 850-862) Annexure I-93. 94. Valuation of the aforesaid property (being Sale Deed No. 3721) Rs. 74,03,000.00 (Pages 863-870) Annexure I-94. 95. Letter of confirmation of mortgage by deposit of title deeds executed by Sri Ananta Charan Nayak (pages 871-872) Annexure I-95. 96. Equitable mortgage by deposit of title deed being Sale Deed no.4295 (pages 873-886) Annexure I-96. 97. Valuation of the aforesaid property (being Sale Deed No. 4295) Rs. 59,79,000.00 (pages 887-894) Annexure I-97. 98. Letter of Confirmation of mortgage by deposit of title deeds executed by Sri Ananta Charan Nayak (pages 895-896) Annexure I-98. 99. Equitable mortgage by deposit of tit....
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.... Annexure I-117. 118. Valuation of the aforesaid property (being sale deed No. 19254) Rs. 1, 83,75,000.00 (pages 1016-1025) Annexure I-118. 119. Equitable mortgage by deposit of title deed being Sale Deed no. 11131107805 (pages 1026-1039) Annexure I-119. 120. Valuation of the aforesaid property (being Sale Deed No 11131107805) Rs. 3,21,56,000.00 (pages 1040-1046) Annexure I-120. 121. Letter of confirmation of mortgage by deposit of title deeds executed by Sri Basudev Nayak (pages 1047-1049) Annexure I-121. 122. Demand Letter Dated 30.01.2020 (pages 1050-1051) Annexure I-122. 123. Interest Calculation Sheet (pages 1052-1060) Annexure I-123. 124. CERTIFICATE OF BANKERS BOOK OF EVIDENCE ACT, 1891 AND I.T ACT, 2000 (pages 1061) Annexure I-124. 125. ROC SEARCH REPORT OF THE CORPORATE DEBTOR (pages 1062-1103) Annexure I-125. 126. MEMORANDUM AND ARTICLE OF ASSOCIATION OF THE CORPORATE DEBTOR (pages 1104-1130) Annexure I-126. 127. PARI PASSU CHARGE CEDING LETTER (pages 1131-1132) Annexure I- 127. 128. CIBIL INFORMATION REPORT DATED 24.09.2020 (pages 1133-1157) Annexure I-128. 129. Or....
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....und of joint liability (Principal Borrower and on Corporate Guarantor), or Principal Borrower or two Corporate Guarantors or one Corporate Guarantor and other Corporate Guarantor till it is shown that the Corporate Debtors combinedly are joint venture company. This fact was analyzed by the Hon'ble NCLAT in the case of Dr. Vishnu Kumar Agarwal Vs. M/S Piramal Enterprises Ltd. and the Court held that the same amount cannot be claimed and section 7 cannot be applied simultaneously. Joint Application of CIRP can be filed against two or more companies only if the companies are in joint venture. In the present case in hand, the Application under Section 7 was filed against both Principal Borrower as well as Corporate (personal) Guarantors. Therefore, this application is not tenable in the eye of law and liable to be dismissed. Under Section 60 (2) and 60(3) of the Code allows filing of simultaneous applications against the Borrower as well as Guarantor but in the Code nowhere it is stated that joint application can be filled under Section 7 of the Code. Moreover, the said application was arising out of the very same transaction and very same common loan agreement. In the present case the....
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.... of the Code has devoid of merit and not sustainable in the eye of law, therefore, this Hon'ble Tribunal has every right not to admit the same and reject the application on the ground of default committed by the Financial Creditor. f. That this reply was filed by the Corporate Debtors after 15 days from the order dated 22.06.2021 passed by this Hon'ble Tribunal. The delay was occurred due to the fact that the principal signatory Sri Ananta Kumar Nayak was out of station and the Assam Government has ordered for restriction of inter district movement till now. Further, the Corporate Debtors prays that the delay of filing reply may be condoned for ends of justice. g. That this reply is filed bonafide and for ends of justice. In the premises, it is Most Respectfully prayed that Your Lordship may kindly allow the reply filed by the Corporate Debtor and after considering the facts and circumstances of the case Your Lordship may reject the application filed under the Section 7 of the Insolvency and Bankruptcy Code, 2016 by the Financial Creditor, the State Bank of India and/or pass any such order/orders as Your Lordship may deem fit and proper. 12. The petitioner h....
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....esent application according to the Forms/Rules prescribed in the Code, 2016, the NCLT, Rules and such other rules and regulations framed under. That the said application is complete and have considerable merits to be allowed. Further, it is pertinent to mention herein that the reply filed by the Corporate Debtor is not in accordance with the National Company Law Tribunal Rules, 2016. Apart from this the Corporate Debtors have also not accompanied their reply along with the Affidavits verifying petition in terms of the National Company Law Tribunal Rules, 2016. It is further stated and submitted that due to inadvertence the names of the personal guarantors were inserted as defendants No. 2 to 7, however an affidavit is filed to delete the names of defendant's no. 2 to 7 from the instant application. f. That the statement made in paragraph 4(i) of the reply are not true and correct and the same are hereby denied. In this connection it is submitted that bare reading of the Section 5(8)(a) and 5(8)(b) of the Code states that, financial debts includes: - i. Money borrowed against the payment of interest; ii. Any amount raised by acceptance under any a....
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....visions of sub-regulation (1) all powers of attorney and other authorizations issued by the Imperial Bank in favour of any officer or other employee who becomes an officer or other employee of the State Bank by virtue of Section 7 of the Act shall continue to be in full force and effect as if instead of the Imperial Bank, the State Bank had been a party to such powers of attorney or authorizations, and, accordingly, any such officer or other employee may exercise on behalf of the State Bank such powers as he was exercising before the appointed day on behalf of the Imperial Bank. (3) The provisions of this regulation shall not deemed in any way to affect the provisions of the Imperial Bank of India Act, 1920, not the authority which any person has under that Act in relation to the Imperial Bank, and any such person if so authorized under this regulation and by, or under, the Imperial Bank of India Act, 1920, may act on behalf of the State Bank as well as the Imperial Bank to the extent so authorized. 77. Plaints, etc., by whom to be signed.- Plaints, written statements, petitions, and applications may be signed and verified, affidavits may be sworn or affirmed, bon....
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.... (d) The recovery of any property by an owner or lessor where such property is occupied shall not be terminated or suspended or interrupted during the moratorium period. II. Supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. III. The provisions of sub-section (I) shall not apply to- (a) Such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (b) The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process. 15. This Adjudicating Authority hereby appoints, as proposed by the FC, Mr. Vishal Ghisulal Jain, Office No. 502, G Square Business Park, Opp. Sanpada railway Station, Sector 30-A, Vashi, Navi Mumbai-400703 having IP Registration No. IBBI/IPA-001/IP-P00419/2017-18/10742 as an Interim Resolution Professional. The Interim Resolution Professional is further directed to make public announcement of moratorium in respect of Corporate Debtor soon after receipt of an authenticated copy of this or....