TaxTMI 
TaxTMI 
2022 (6) TMI 543
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....Ltd./ R-2 and is aggrieved with the order passed by the Adjudicating Authority holding that the Appellant had defaulted in paying the R-1 i.e. Central Bank of India (CBI) under the loan documentation. 3. The aforesaid direction would cause grave prejudice to the Appellant the same is fatal to the functioning of the Appellant. The fact of the case as stated by the Ld. Sr. Counsel for the Appellant are as follows: (a) The Respondent No. 1/CBI has claimed an amount of Rs. 185,35,24,319/- as amount due to them from Corporate Debtor/R-2 towards the loan advance by them. The R-1/CBI in support of its claim has relied on the loan agreement and the application filed by it before DRT against the demand notice dated 29.09.2018 and 05.10.2018 from the R-1/CBI. (b) The Appellant vide its letter dated 12.10.2018 denied the allegations made therein and thus raising a dispute. (c) The Appellant approached the R-1 for a One Time Settlement (OTS) and paid an amount of Rs. 10 Crores to the R-1. The said Settlement Proposal was accepted by the R-1 vide its sanction letter dated 28.01.2019 and consequently R-1 withdraw the Company Petition on 31.01.2019. (d) Resp....
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....ating Authority took up the hearing in the above matter by virtual mode. The Appellant wanted to place the aforesaid material on record and also the fact that they were willing to make payment of the interest on the delayed period. However, the Hon'ble Bench refused to hear the Appellant. Further due to certain technical snag, the Appellant and their counsel were removed from the Virtual hearing. The Appellants immediately called up the helpline available on the Virtual Hearing portal, however, since there was no response, the Appellant were compelled to place the aforesaid facts to the Registry of the Hon'ble Tribunal and requested for re-entry into the hearing however were not allowed to re-enter the same. (k) It is relevant to mention herein that though the order was passed on 16.07.2021, the Appellant was informed about the same on 22.07.2021 when it was uploaded on the website. (l) The Appellants further state that the R-2 has subsidiary companies which are completely relying on the business of the R-2 and upon passing of the impugned order for CIRP of Corporate Debtor, these subsidiary companies have come to an abrupt stand still thus affecting of the workin....
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....10.12.2021 The Appellant filed Civil Appeal No. 4982 of 2021 before the Hon'ble Supreme Court which granted a stay of the CIRP for a period of 8 weeks. The said stay was extended from time to time. 10. 25.02.2022 By way of its final judgment, this Hon'ble Supreme Court was pleased to make the stay order absolute until the pendency of the present Appeal before this Hon'ble Court. 5. Reliance is placed on the celebrated case of "Swadeshi Cotton Mills vs UOI (1981) 1 SCC 664" (paras 26-30). The Hon'ble Madras High Court has also in "Shree Krishna Educational Trust vs Government of TN 2016 SCC" Online Mad 2011 5 (para 6.12 to 6.17) succinctly laid down the components of a fair hearing which have not been complied with in the present case. The principles of natural justice are embedded in the Indian legal jurisprudence. In "Maneka Gandhi vs. Union of India (1978) 1 SCC 248", the Hon'ble Supreme Court has held "... The court must make every effort to salvage this cardinal rule to the maximum extent permissible in a given case. It must not be forgotten that "natural justice is pragmatically flexible and is amenable to capsulation under the compulsive pressure of ci....
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....share of the overall financial claim against the Corporate Debtor. As against its overall claim of Rs. 185 crores (approx.) the Respondent Bank had entered into the OTS dated 13.03.2020 for an amount of Rs. 40 Crores only. However, now the Respondent Bank is receding to accept the OTS amount which will expose the other financial creditors who would be condemned to huge losses. 10. However, the Adjudicating Authority vide its order dated 16.07.2021 in CP No. 3794/IBC/MB/2019 has observed the followings: "1. The Corporate Debtor, except putting up appearance through Shri Akshay Patil, advocate even did not chose to file any reply in the above matter. The above Company Petition is nothing but a second round of litigation. The earlier company petition bearing no. 4086 of 2018 was withdrawn by the applicant on account of OTS (One Time Settlement) sanctioned to the Corporate Debtor. Except paying upfront amount of 10 crores, the Corporate Debtor did not adhere to the compliance of the remaining terms of the OTS despite availing nearly two years' time. 2. Thus, the debt and default are admitted in this case and the debt is also within limitation. The application is co....
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....ing Authority. (f) That Mr. Sachin Manohar Deshmukh, erstwhile Director of Neptune Developers Ltd. Being aggrieved by the order dated 23.08.2021 preferred an appeal before Hon'ble Supreme Court bearing Civil Appeal No. 4982/2021. (g) That the matter was heard by the Hon'ble Supreme Court on 27.08.2021, the Hon'ble Supreme Court of India by its order dated 27.08.2021 was pleased to stay on further proceedings in the CIRP for a period of 8 weeks from the date of the order. (h) That on learning of the order dated 27.08.2021, the IRP wrote an email dated 28.08.2021 to the CoC members and informed them of the said development and also to the erstwhile management. The erstwhile management vide its email dated 30.08.2021 contended that the IRP cannot remain in control and management of the Corporate Debtor and that he should hand over the management. (i) Thereafter the R-2 vide its email dated 01.09.2021 replied that the Hon'ble Supreme Court order dated 27.08.2021 clearly stated that there shall be a stay of further proceedings for a period of 8 weeks from today, which implies that no further steps to be taken in connection with the CIR Process. The st....
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....responsibilities as per the provisions of the I & BC, 2016 and thereafter as stated herein above has been managing the affairs of the Corporate Debtor. The Ld. Counsel for R-2 given the status as above. 12. The Ld. Counsel for R-1/CBI has also provided the list of relevant dates for bringing the clarity of the Appeal: S. No. Date Event 1. 18.02.2013 Term loan of 100 crores sanctioned by R1 bank to the CD [@pg. 57-58] 2. 31.03.2015 CD account was declared as NPA[pg. 507,Appeal Vol. 2] 3. 30.06.2017 CD acknowledged an amount or INR 95,27,86,406/- was due to R1 Bank as of 30.06.2017 [pg 442, Appeal Vol. 2] 4. 28.01.2019 R1 Bank sanctioned 1st OTS and CD was required to pay Rs. 93.18 crores within 90 days. Further, it was agreed to inform the concerned authority who categorized the CD's account as fraud at RBI of the acceptance of the OTS [pg 53-54, Appeal Vol. 1] 5. 17.06.2019 R1 Bank rescinded the 1st OTS since except payment of upfront 10% amount, CD failed to pay balance 83.18 crores [pg. 517, Appeal Vol. 2] 6. 13.08.2019 Insolvency Application was filed by R1 Bank u/s 7 of the Code for default in payment of Rs. 1....
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....that on 08.07.2021, the Counsel of the Appellant/CD was removed/logged out from the virtual hearing before the Adjudicating Authority and therefore had no opportunity to argue the case [averment @ pg. 27 (Ground D)]. This contention is false since: i. The case was listed as Sl. No. 4 on 08.07.2021 before the Adjudicating Authority [pg. 51/52, reply Vol.] ii. The Corporate Debtor's Counsel has admitted in the email dated 08.07.2021 that only after the hearing in Sl. No. 4 the counsel was removed [pg. 585, Appeal vol.3] iii. The Adjudicating Authority's order dated 08.07.2021 records that the parties were heard [pg. 58, reply Vol.] iv. the Appellant suppressed the cause list for 08.07.2021 and the order dated 08.07.2021 while filing the present appeal. v. No application or sworn affidavit has been filed by the counsel for the Appellant/CD alongwith the present Appeal stating that he was removed from the hearing and was not given any opportunity to present the case. vi. Assuming without admitting that the Appellant/CD's counsel was not heard by the Adjudicating Authority, then the Appellant may have immediately approached this Hon'....
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....g Authority. In fact, the 2nd OTS was rescinded on 08.07.2020 itself, i.e., almost a year before the Insolvency Application was heard and reserved for orders. 14.(1) We have carefully gone through the submissions made by the Ld. Sr. Counsel/Counsels of the parties, the pleadings available on record and are having the following observations: (a) It is not in dispute that the Term Loan was not taken from Respondent No.1/CBI by the Corporate Debtor. (b) It is also not in dispute that Corporate Debtor's account was declared as NPA on 31.03.2015. (c) It is also not in dispute that Corporate Debtor has not acknowledged the specified amount i.e. approximately Rs. 95 Crore due to the Respondent No. 1/CBI as on 30.06.2017. (d) The parties both the Financial Creditors/Respondent No. 1 and Corporate Debtor/Appellant is not denying that an OTS was not sanctioned on 28.01.2019 and the same was rescinded by the Bank on 17.06.2019. The Corporate Debtor failed to pay balance Rs. 83.18 Crore out of OTS sanctioned of Rs. 93.18 Crore and hence only Rs. 10 Crore was paid by the Corporate Debtor/ Appellant to the Bank. (e) What it is observed that the Res....
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.... Office: 201, Satchitanand Bldg., 12th Road, Khar (W), Mumbai - 400 052 Tel 022-26498007 Corporate Office: 203B Arcadia, 195, Next to N.C.P.A Marg, Nariman Point, Mumbai-400021 Tel No.: 022 22845755/22828994 Cellular No.: + 91-9920279899 E-mail:[email protected] BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH Company Petition No.-3794/IBC/MB/2019, under section 7 of the IBC, 2016 In the Matter of: Central Bank of India V/s Neptune Developers Limited ... Financial Creditor ...Corporate Debtor Dear Sir, Please find enclosed herewith IRP's Report certifying Constitution of Committee of Creditors. Kindly to be noted. Yours sincerely, Vijay P Lulla Interim Resolution Professional Neptune Developers Limited Place: Mumbai Date: 19.08.2021 Document 2 BEFORE THE HON'BLE NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH Company Petition No.-3794/IBC/MB/2019, under section 7 of the IBC, 2016 In the Matter of: Central Bank of India V/s Neptune Developers Limited Sr no. Financial Creditor ...Corporate Debtor INDEX Particulars Page from...to... 1. RP's Report Affidavit....
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....chitanand Bldg., 2nd Floor, 12th Road, Khar (West), Mumbai 400 052, do hereby solemnly affirm and declare as under: 1. That I have been appointed as Interim Resolution Professional (IRP) vide order dated 16th July, 2021, received on 23rd July 2021, in the aforesaid matter. 2. That I am familiar with the facts and circumstances of the case having dealt with it in my official capacity and am competent to depose this affidavit.. 3. That I have read and understood the present Report on Constitution of Committee of Creditors which is set as below:- i. That pursuant to the direction of Hon'ble Tribunal the Public Announcement was made in Form A on 26th July, 2021 in the Free Press Journal (Mumbai) & Navakal (Mumbai). Copies of Public Announcement are enclosed as Annexure-1. ii. That the last date of submission of Claims was 06.08.2021. The Interim Resolution Professional has filed the application under section 21(6A)(b) of the Insolvency & Bankruptcy code 2016 for provisionally appointing Mr. Manish Motilal Jaju having registration No. IBBI/IPA-001/IP-P00034/2016-17/10087 as the Authorized Representative of Financial Creditor of the Corp....
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....5,55,65,754 3,83,58,43,908 Financial Creditors in a Class 1.51% received - 350 (Mr. Manish 55,21,25,075 28,76,05,733 26,45,19,342 Jaju Various Dates 2.80% provisionally appointed as Authorised Representative ( application filed with AA on 18-8-2021. Total Claims 19,23,04,93,820 10,27,33,40,748 8,95,71,53,072 100.00% Ч Document 7 NIMENT OF Note: The claims are under verification (16) 5 That the IRP submits the present report in compliance to the Regulation 17(1) of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations 2016. A DEPONENT VERIFICATION: Verified on this 1808 202 that the contents of the foregoing affidavit are true and correct to the best of my knowledge are true and correct. No part of it is false and nothing material has been concealed therefrom. TA OT AR S. M. N. Naqvi Mumbai & Thane Dist . Reg. No. 3054 ENT OF INDIA N GOVE DEPONENT BEFORE ME 7~-8-21 S. M. N. NAQVI NOTARY Residential Add.: Akruti Bldg., No. 3, Flat No. 401, Hiranandani Lallu Bhai Co....