TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 884
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....r the Companies Act, 1956. It's registered office is Paridhan Garments Park, SDF-4, 4th Floor, 19 Canal South Road, Kolkata- 700015. Therefore, this Bench has jurisdiction to deal with this petition. 4. The present petition was filed on 21 June 2019 before this Adjudicating Authority on the ground that the Corporate Debtor has defaulted to make a payment of a sum of Rs.5,46,74,948/- (Rupees Five Crore Forty Six Lakh Seventy Four Thousand Nine Hundred and Forty Eight only) as on 01 June 2019. Submission of Mr. Anirban Ray, learned Counsel appearing for the Financial Creditor 5. Mr. Anirban Ray submitted that one Madhuri Commodities Private Limited had approached Reliance Capital Limited for revolving trade facility to the tune of total Rs. 12,00,00,000/- (Rs. 2,00,00,000/- towards Trade Finance and Rs. 10,00,00,000/- towards Supply Chain Finance). Thereafter as a result of alleged cash crunch, Madhuri Commodities Private Limited could not repay the said loan and started defaulting. Reliance Capital Limited recalled the said loan facilities and demanded payment of the foreclosed amount. 6. By a settlement agreement dated 29 December, 2017 Annexure "A-5" at Pp. 23- of the Company ....
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....eived by the Corporate Debtor on 06 June 2019. 14. Hence, after receipt of installment amounts as applicable to the loan account, there is a due of of Rs of Rs.5,46,74,948/- (Rupees Five Crore Forty Six Lakh Seventy Four Thousand Nine Hundred and Forty Eight only) calculated upto 01 June 2019. 15. Mr. Ray submitted that where any amount raised under any other transaction which has the commercial effect of a borrowing would also tantamount to a financial debt. He placed reliance on the order of the Hon'ble Supreme Court in Orator Marketing Private Limited v. Samtex Desinz Private Limited, 2021 SCC OnLine SC 513 (paragraph 22-28). 16. The learned Counsel further submitted that the debt of Madhuri Commodities Private Limited was transferred by way of term loan to effect the borrowing and would also tantamount to assignment of debt. That there cannot be a fresh disbursement when there is an assignment of debt. 17. The Financial Creditor has placed the following documents on record: a. Copy of the loan Facility Agreement; annexed and marked as A-8 at Pp. 46-63; b. Copies of Loan recall notice dated 06 February 2019, 01 March 2019; annexed and marked as A-9 at Pp. 64-65; c. C....
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....istering the said charge over the properties of the Company. Mr. Saha submitted that referred to Form No. CHG-1 dated 04 May 2026 of Madhuri Commodities Private Limited, wherein properties of Madhuri Commodities Private Limited was registered in favour of the Financial Creditor. 24. The Financial Creditor has not filed a Board Resolution under section 180(1)(c) of the Companies Act to demonstrate that the Corporate debtor had sought for loan. 25. The Corporate Debtor filed a Supplementary affidavit stating that the Corporate Debtor has filed a Title Suit before the learned Alipore Court against the Financial Creditor being Title Suit No. 569 of 2021 praying for declaration that no money was disbursed by the Financial Creditor to the Corporate Debtor. 26. The Financial Creditor in Form I has not mentioned about Madhuri Commodities Private Limited and has hence suppressed the said fact which warrants dismissal of the petition. He placed reliance on Ramjas Foundation v, UOI (2010) 14 SCC 38 (paragraph 21 to 30) and Meghmala v. G. Reddy (2010) 8 SCC 383 (paragraphs 2, 28 to 36 and 50). 27. The letter dated 19 February 2019 was signed by one Aditya Agarwal, who is not the Director o....
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....estructure of loan), in all the above letters there is clear admission on the part of the Corporate Debtor that the Financial Creditor has granted loan facility to the Corporate Debtor. 37. Thirdly, we cannot ignore the reply of the Corporate Debtor filed on 30 December 2019 wherein the Corporate Debtor has stated that the Financial Creditor had granted loan to the corporate debtor vide Loan Facility Agreement dated 04 January 2018. 38. On perusal of the Balance Sheet for the Financial Year 2017-2018, the name of the Financial Creditor is written under the heading for term loans. Hence, there was an agreement for loan between the Corporate Debtor and the Financial Creditor and if there was no disbursal of any amount, the Corporate Debtor would not have sought for restructuring of the loan account on 04 February 2019 (Annexure A-15 at page 86 of the Company Petition). 39. In the letter praying for restructuring, the Corporate Debtor has submitted that "due to sudden and unanticipated financial stress for a temporary period we have not been able to make payment of EMI due on 15.01.2019 only.". The stand taken in the affidavit-in-reply filed by the Corporate Debtor wherein it has s....
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....ncy & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating CIRP against Prapti Fashions Private Limited, the Corporate Debtor, is admitted. b. There shall be a moratorium under section 14 of the IBC. c. The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. d. Public announcement of the CIRP shall be made immediately as specified under section 13 of the Code read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. e. Ms. Meera Prasad, registration number IBBI/IPA-003/IPN00278/ 2020-2021/13136, email: [email protected], is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the Code subject to submission of a valid Authorisation of Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, ....