TaxTMI 
TaxTMI 
2022 (1) TMI 1267
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....thorised representative vide its Board Resolution dt. 11.02.2020 (Annexue-A-2), hereinafter referred to as the Financial Creditor, for initiation of Corporate Insolvency Resolution Process in respect of M/s Gourepore Co. Ltd., a corporate entity with CIN U51109WB1918PLC001029, having its Registered office at 18, Netaji Subhas Road, 1st Floor, P.S. Hare Street, Kolkata-700001, hereinafter referred to as the Corporate Debtor. 3. It is submitted in the petition that the Financial Creditor was incorporated 28th July,2007 and the Corporate Debtor was incorporated on 29th July,1998. It is submitted that the Corporate Debtor has Authorised Share Capital of Rs.1,25,00,000/- and Paid up Share Capital of Rs.1,22,50,000/- It is submitted in the petition that the Corporate Debtor owes to the Financial Creditor a sum of Rs.2486,44,80,162.85/- as financial debt which consists of Rs.49,18,17,804.18/- and Rs.2437,46,62,358.67/- on account of interest @ 19.75% per annum. 4. It is further submitted that in or on 07/08/1997, one of the creditors of the Corporate Debtor, namely, R.K.Garodia, & Co. filed a petition for winding up before the Hon'ble Calcutta High Court being C.P.No. 355 of 1997. Subse....
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....her submitted that on 6th November,2008, Allahabad Bank assigned its entire claim against the company including the benefit of all its securities in favour of the present Financial Creditor. Copy of the Agreement dated 6th November, 2008 is annexed is Annexure A-11. Thereafter, on 14th September, 2015, a fresh deed of assignment was duly registered between Allahabad Bank and the Financial Creditor, a copy whereof is annexed as Annexure A-12. 10. It is submitted that the Financial Creditor also entered into a One Time Settlement with the 4th Secured Creditor i.e. Industrial Investment Bank of India (previously known as Industrial Reconstruction Bank of India)and has paid the entire One Time Settlement amount to the said Secured Creditor. Documents proving the same are collectively annexed as Annexure A-13. 11. It is submitted that by a letter dated 16th February, 2009, the Financial Creditor through its Advocate has informed the Official Liquidator about such assignment and requested the Official Liquidator to record the name of the Financial Creditor as the only Secured Creditor of the Company. A copy of the letter dated 16th February, 2009 annexed as Annexure A-14. 12. It is su....
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....s Pvt.Ltd. preferred an appeal before the Hon'ble Division Bench, High Court of Calcutta and ultimately, on 09/08/2017, the Hon'ble Division Bench was pleased to set aside the impugned order dated 5th December, 2016 passed by Ld. Single Judge. 15. Thereafter, the Official Liquidator started to adjudicate the claims as well as making an inventory of the assets of the Corporate Debtor. However, the Official Liquidator has not sold the assets of the Corporate Debtor to realize the claim of the Financial Creditor. However, by an order dated 19th December, 2019, the Hon'ble High Court "Single Bench" has been, inter alia, pleased to dismiss the Company Petition being C.P.No.355 of 1997 for want of prosecution. All interim orders passed in the matter were also vacated. The concerned department and also the computer section were directed to take note of the dismissal and make necessary entries in the ledger as well as in the electronic records of the Court. Copy of the order dated 19th December, 2019 is annexed as Annexure A- 16. 16. In view of the above, the Financial Creditor has sought to move the present application under section 7 for the reliefs mentioned therein. 17. It is submit....
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....nt application. 4) Such further order or orders be passed and/or direction or directions be given as this Hon'ble may deem fit and proper". 23. The applicant in this application has submitted that the applicant is one of the unsecured creditors and has also filed an application for scheme for revival of the Corporate Debtor which is in liquidation before the Hon'ble High Court of Calcutta. It is submitted that the present application has been filed to bring to the notice of this Adjudicating Authority mischief and fraudulent activities of the Financial Creditor, who has filed the present application under section 7 of the IBC,2016 with unclean hands and without disclosing the orders as passed by the Hon'ble High Court of Calcutta and also the Hon'ble Supreme Court of India. 24. It is submitted that on or about 1988, the Corporate Debtor namely M/s Gourepore Company Limited became a sick Industrial Company (Special Provisions Act, 1985). By an order dated 12th September, 1991, the Ld. Board for Industrial and Financial Reconstruction (BIFR) was pleased to form an opinion that it is just and equitable to wind up the said company being the Corporate Debtor herein and forwarded its....
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....assignor for assignment of all the Debts recoverable by the Assignor from the Corporate Debtor which by that time is already (in liquidation) and the rights of the Assignor in the Hypothecated assets including the Plant and Machinery belonging to the Corporate Debtor was for a sum of Rs. 45 lacs only, and a suit has been filed being T.S. No. 143 of 1991 which has since been transferred to Debts Recovery Tribunal-I, being T.A. No. 34 of 2001 for recovery of its dues and that the said suit was still pending without the debt being adjudicated and crystalised. Thus, unless the details of the debts are disclosed and crystalised and that such claim is adjudicated, the alleged financial Creditor cannot claim to have any right in respect of the said assignment made by the United Bank of India. Further, Teesta Multipupose Private Limited had thereafter assigned its rights under the Deed of Assignment dated July 6, 2007 to the "present alleged Financial Creditor" namely Ashray Vyaapar Private Limited by another deed of assignment dated February 13, 2008, another unregistered document. It is needless to say that the first assignment itself being bad, the subsequent assignment continues to be ....
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....it pending before the Learned Debts Recovery Tribunal-I. It is submitted that the said recovery proceeding was basically in the nature of an execution of a decree. Had the certificate which was issued on July 1, 1996 being assigned to Ashray Vyaapar Private Limited, then Ashray Vyaapar Private Limited ought to have got itself substituted in its place in the said recovery proceeding or had initiated a fresh suit by making the Official Liquidator of the party before the competent court of law. However, no such proceeding was initiated and the said recovery proceeding was in fact withdrawn. Instead, the entire payment was made as a settlement amount on behalf of the Corporate Debtor without the knowledge and consent of the Official Liquidator or permission of the Hon'ble High Court at Calcutta. A copy of the said certificate and Deed of Assignment dated November 6, 2008 are annexed as Annexure-F. 31. It is submitted that subsequently, by another indenture dated September 14, 2015 Allahabad Bank had once again, fraudulently, assigned the very same certificate in favour of Ashray Vyaapar Private Limited by registering it before the Additional Registrar of Assurance-IV, Kolkata whereas ....
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....transferred to;" 38. Section 7(1) is reproduced as under:- Initiation of corporate insolvency resolution process by financial creditor- (1) " A Financial Creditor ether by itself or jointly with [ other financial creditors, or any other person on behalf of the financial creditor , as may be notified by the Central Government] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred". 39. Ld. Counsel for the applicant has submitted that the deeds of assignment by the Banks are bad in law. It is submitted that Title Deed once released by the Bank goes in favour of the Official Liquidator as no one else can claim to such title. 40. On the question of Locus standi of the applicant, the applicant referred and relied upon the case of S.P.Chengalvaraya Naidu Vs. Jagannath (1994) 1 SCC 1. The Financial however, alleged that the applicant has no locus standi and cannot be heard by this Adjudicating Authority. 41. The Ld. Counsel has also relied upon an order of the Hon'ble Supreme Court in Civil Appeal No. 7641/2019 in the matter of Beacon Trusteeship Limited vs. Earthcon Infra....
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....ought to the notice that the Hon'ble Supreme Court in Civil Appeal No. 3735 of 2020, in the matter related to same parties has ordered that the proceedings for winding up pending before the company Court (Allahabad High Court) against the respondent to be transferred to NCLT, Allahabad and to be taken up along with the application under Sec 7 IBC. 6. The factual background of the winding up petition is that one M/s Girdhar Trading Company, filed a petition as Company Petition No. 24 of 2015 before the Hon'ble High Court of Allahabad u/s 433 of the Companies Act, 1956 for the winding up of the Respondent company on the Ground that the company was unable to pay its debts in which the Court issued notice to the Respondent but the Respondent failed to appear before the company Court. 7. Thereafter, the Company Court passed an order dated 10.03.2016 directing the winding up of the 1st respondent Company on the ground that the Company has been unable to pay its debts and that it was just and equitable to wind up the respondent Company and appointed the official liquidator attached to the High Court of Allahabad as the Liquidator and directed him to take over the assets and books of a....
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.... Swiss Ribbons (P) Ltd. v. Union of India [Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17] ["Swiss Ribbons"], it is clear that the IBC is a special statute dealing with revival of companies that are in the red, winding up only being restored to in case all attempts of revival fail. Vis-à-vis the Companies Act, which is a general statute dealing with companies, including companies that are in the red, the IBC is not only a special statute which must prevail in the event of conflict, but has a non obstante clause contained in Section 238, which makes it even clearer that in case of conflict, the provisions of the IBC will prevail. 25. A conspectus of the aforesaid authorities would show that a petition either under Section 7 or Section 9 IBC is an independent proceeding which is unaffected by winding-up proceedings that may be filed qua the same company. Given the object sought to be achieved by the IBC, it is clear that only where a company in winding up is near corporate death that no transfer of the winding-up proceeding would then take place to NCLT to be tried as a proceeding under the IBC. Short of an irresistible conclusion that corporate death is inevitabl....
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....the Bench is of the opinion that there is a 'default' on the part of the Corporate Debtor by not fulfilling the debt owed to the Financial Creditor, the application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete. The present petition being filed on 18.12.2019 found well within limitation as the copy of statement of account is of 01.04.2018 reflects the amount credited to the corporate debtor. 15. Therefore, in light of the aforesaid provisions, this Adjudicating Authority is of the considered view that the total amount claimed in default is of Rs. 32,00,000/- which is more than Rs One Lakh to trigger the Corporate Insolvency Resolution Process against the Corporate Debtor. The increase is threshold limit to initiate CIRP from Rs. 1 lakh to 1 Crore vide notification of the MCA dated March 24, 2020 does not in any way apply to the present matter as the application was pending adjudication much before the notification came into force". 46. The objection of the applicant in I.A.(IB) 1069/KB/2021, that the debt of the Banks could not have been validly assigned to the present Financial Creditor does not stand to any reason. There cannot be any....
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....an order admitting the present application is passed by this Adjudicating Authority. He has further submitted that no disciplinary proceedings are pending against him with the Board or Institute of Insolvency Professionals of ICAI. 52. We have heard Ld. Counsel for the Financial Creditor and the Official Liquidator, and the applicant in IA (IB) No. 1069/KB/2021 in these proceedings, even though this IA(IB) 1069/KB/2021 has been considered and dismissed. 53. We have also gone through the petition and the Annexures and documents enclosed therewith along with orders of the Hon'ble High Court placed on record. 54. We are satisfied that the petition of the Financial Creditor is very much maintainable and the Financial Creditor is entitled to the relief sought in the petition. 55. On the basis of the submissions made by the Financial Creditor and the documents placed on record since the Corporate Debtor has failed to make any payment of the financial debt due to the Financial Creditor, we are of the opinion that there is a default on the part of the Corporate Debtor by not repaying the debt owed to the Financial Creditor and in view of the fact that the application is otherwise compl....