TaxTMI 
TaxTMI 
2018 (3) TMI 1966
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....RPORATE APPLICANT" the Corporate Debtor is Dishnet Wireless Limited having Registered office at Opus Centre, 47, Central Road, Opposite Tunga Paradise, MIDC, Andheri (East), Mumbal City, Maharashtra-400 093. The shareholding pattern is as under :- "1 . NominaI Share Capital is Rs. 20,750,000,000/- i.e. 7,50,00,000 Equity Shares of Rs. 10 each and 200,00,00,000 Cumulative Redeemable Preference Shares of Rs. 10 each. 2. Paid up Share Capital is Rs. 16,386,157,200/- 1. e. 29,798, 130 Equity Shares of Rs. 10 each and 1,608,817,590 Cumulative Redeemable Preference Shares of Rs. 10 each." 1.1 At the outset, Learned Senior Advocate Mr. Janak Dwarkadas has explained the necessity of submission of this Application by the Corporate Debtor itself, to be declared as Insolvent, by referring 12th February 2018 Guidelines issued by Reserve Bank of India (RBI/2017-18/131) addressed to all Scheduled Commercial Banks and All India Financial Institutions. As per the Preamble of the said Guidelines, explanation tendered for issuance of the said Guidelines was that "The Reserve Bank of India has issued various instructions aimed at resolution of stressed assets in the econ....
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....10 for admissions of an Application are minimal that an Applicant is expected to explain the 'Debt' and secondly to establish the 'Default'. In this regard, an Order has been pronounced by Hon. NCLAT in the case of Leo Duct Engineers & Consultants Limited Vs. Canara Bank (Company Appeal (AT) (Insolvency) No.100 of 2017) Order dated 13th December, 2017 is referred wherein the conditions for Admission of an Application under section 10 of The Code are specified. The observation is that the Adjudicating Authority, on hearing the Parties and on perusal of records, if satisfied, that there is a 'Debt' and there is a 'Default' occurred then has no option but to Admit the Application, unless the Application is incomplete. In one of the case of M/s. Unigreen Global Private Limited Vs. Punjab National Bank and others (Company Appeal (AT) (Insolvency) 81/2017), Order dated 01^st December, 2017, the verdict says that AA is bound to Admit Application and not to reject on the ground of unrelated facts. Facts beyond the requirement of the said Provision are not required to be pleaded. The restriction for Admission is also prescribed in Section 11 of The Code that certain persons are not entitled....
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....g any Third Party Interest. Our attention is drawn that the Hon'ble Delhi High Court has further directed, quote "It is clarified that the injunction is he/ng passed against the Respondent taking further steps. unquote. Hence it is pleaded that the Respondent in the said case i.e. M/s. Aircel Limited is stopped to take any further steps, which Includes filing of the impugned Application under section 10 of The Code. The Operational Creditor viz. GTL Infrastructure Limited has a huge amount to recover. That a Trade Liability ¡s to be recovered from Dishnet Wireless Limited. If the Application is admitted, then his right of recover shall get jeopardised. On admission the Financial Creditors shall constitute a Committee of Creditors and vote 'n their favour; instead of supporting the claim of this Operational Creditor. It is pleaded that this Petition do not deserve admission because the material fact about the pendency of High Court case has not been disclosed by the Petitioner, therefore, the Petition is malicious and defective due to non-filing of material facts. Further pleaded by Mr. Kamath that sometime be granted because the Operational Creditor came to know about this Pe....
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....er the objectives enshrined ¡n the Preamble and the purpose for which this Code came into operation. 3.1 Although on the face of such a Petition it appears strange that why a Corporate Body itself is taking step to be declared Insolvent by moving an Application under section 10; but the answer ¡s obvious that sometimes it becomes impossible to run the business due to pressing demand of recovery by the Creditors. It is to be made clear at this moment itself that Section 10 be not used or considered as a scapegoat for the defaulters, or that an exist route be made possible under the guise of Bankruptcy. The procedure of Section lo is to be applied to facilitate the restructuring of the Stressed Assets as well as to reorganize the finances of a defaulted Company. For the purpose of reorganization and also for maximisation of value of assets due procedure is laid down in The Code and to achieve the said goal, the role of the NCLT is vital. Not only as an Adjudicating Authority but sometimes, NCLT is also functioning as a Supervisory Authority so that the provisions of This Code be successfully implemented. Specially when a Resolution Plan is submitted before NCLT to reco....
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....esolution Plan to overcome the stressed finances. A statement has also been made, worth mentioning, that no SARFAESI or such other recovery proceedings are pending so far against the Corporate Debtor. One more important aspect is worth to be noted is that the present step of the Corporate Debtor is not in contradiction of the observations of the Hon'ble Delhi High Court. In that case an argument of a Learned Counsel representing SOI before the Hon'ble Court was that restructuring of the Debt is a primary motive of Consortium of Bankers hence such a step is required to be taken hence Respondent is free to move an Application for modification of the impugned Order, which was also allowed by granting liberty to Bankers/SBI to take steps to exercise their rights as per law. Hence the Hon'ble Court was also not objecting for taking due steps if it ¡s ¡n the benefit of restructuring of the finances. That objective can be achieved by filing section 10 Application It ¡s therefore not in contradiction of the Order of the Hon'ble Delhi High Court, but toeing the same line. 3.3 I am also of the view that under the changed circumstances when the RBI has issued Guideline....
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....and other revenue was better from 574 Million to 64O Million. On the same lines, the Applicant has, therefore, expressed that under the supervision of experts and Judicial Body, the gross revenue generation shall be better in the months to come. In addition to the scope of increase in revenue generation, it has also been demonstrated that the Debtor Company has enough valuable assets to satisfy the major portion of the outstanding Debt. A provisional Assets and Liabilities drawn as on 20^th February, 2018 of Dishnet Wireless Limited is annexed in Volume-VIII, Page-1583 which reflects that under the Head "Current Assets", Loans and Advances are to the tune of 22,50,27,638/- and Other Financial Assets U95,25,78,756/- and further Other Non-Current Assets 256,07,69,485/-. As against that, the major Liability shown as Financial Borrowings to the tune of 25,21,6O,00,511/-. There are other Financial Liabilities of 22,87,13,45,246f-. Attention has been drawn on the Trade Receivables totalling 432,3O,02,623/-. As against that, Trade Payables are Rs.35,58,40,94,097/-. 6 To conclude, considering the voluminous evidences annexed along with the Application and in the light of the provisio....
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....actions as may be notified by the Central Government in consultation with any financial sector regulator. (g) That the order of Moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be. (h) That the public announcement of the corporate insolvency resolution process shall be acted upon immediately as specified under section 13 of the Code. 9 DIRECTIONS TO IRP : That this Bench thus hereby appoints Mr. Vijaykumar V. Iyer, Registration No. IBBI/IPA-001/IP-P00261/2017-18/10490 as Interim Resolution Professional (IRP) to carry out the functions as mentioned under Insolvency & Bankruptcy Code. The so appointed JRP shall perform the duties as assigned under Section 18 and under section 15 of the Code. The IRP shall inform the progress of the Insolvency Proceedings and submit the report of the compliance of the directions of this Order within 30 days to this Bench. A liberty is granted to intimate even at an early date, if need be. ....