TaxTMI 
TaxTMI 
2023 (2) TMI 1139
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....s two hundred thirty eight crore thirty nine lakhs twenty six thousand four hundred and thirty eight and forty three paise) are payable by the Corporate Debtor and the Corporate Debtor has defaulted in repayment of the same. 3. The total amount claimed to be in default by the Financial Creditors is Rs. 8,72,58,08,402.27/- (Rupees Eight hundred seventy-two crores fifty-eight lakhs eight thousand four hundred two and paise twenty-seven only). The date of default stated to be is 12.04.2018. 4. The Corporate Debtor is a company limited by shares incorporated on 17.05.1995 under the Companies Act, 1956, with the Registrar of Companies, Mumbai. Its registered office is at 709-C Wing, One BKC, near Indian Oil Petrol Pump Bandra Kurla Complex, Bandra (East) Mumbai - 400051. Therefore, this Bench has jurisdiction to deal with this petition. Submissions made by the Financial Creditor: 5. The Financial Creditor submits that the Corporate Debtor was had availed various credit facilities sanctioned by the Applicant since 1996. The Financial Creditor have sanctioned total of Rs. 756.75 Crores vide sanction letter dated 05.09.2017 in the following facilities as under: Sr. No. Fa....
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..... (Annexed and marked as "Exhibit G-3" is the copy of Memorandum of Entry dated 04" March, 2017; iv. Registered mortgage (Exclusive Charge) on Office Block Situated at Unit No. 709, 7 Floor, "C" Wing, One BKC, G Block, Plot No. 66, CTS No. 4207, Bandra Kurla Complex, off. Bandra-Kurla Link Road, Bandra (E), Mumbai - 400051 (Annexed as "Exhibit G-4") v. Hypothecation of stocks of all the current assets of the Corporate Debtor, Raw Material, Stock in Process, Semi Finished and Finished Goods, Bills Receivables, Book Debts both present and future and also the whole of the moveable fixed assets (Annexed as "Exhibit G-5) Personal Guarantee: 1. Uday Jayant Desai 2. Suman Jayant Desai, 3. Nilima Uday Desai, 4. Sunil Verma, 5. Rita Sunil Verma, 6. Anoop Kumar Wadhera, 7. Sujay Uday Desai, 8. Sanjana Uday Desai, 9. Nipun Sunil Verma, 10. Saral Sunil Verma, 11. Poonam Anoop Kumar Wadhera (Annexed as "Exhibit H-1" - copy of Deed of Guarantee dated 26' November, 2015.) 12. Uday J. Desai (HUF), 13. Sunil Verma (HUF) (Annexed as "Ex....
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.... that the Applicant has conveniently suppressed the fact about the dismissal of the 2018 Application by this Tribunal and the said action of the Financial Creditor is misconduct in itself and on the Application is liable to be dismissed without going into the merits of the case. In furtherance of this argument, the Corporate Debtor has relied on the cases of Dalip Singh v. State of Uttar Pradesh and Ors. (2010) 2 SCC 114 and Oswal Fats and Oils Limited v. Additional Commissioner and Ors. (2010) 4 SCC 728 14. Moreover, it is the case of the Corporate Debtor that the present Application is in violation of the RBI circular dated 07.06.2019 as no opportunity was given to the Corporate Debtor to submit a resolution plan or restructure its debt under an inter creditor arrangement. The Corporate Debtor submits that the Corporate Debtor on 09.07.2018, had submitted a resolution plan which was rejected by the Financial Creditor on frivolous and arbitrary grounds. Further the Corporate Debtor had submitted a revised resolution plan which was also rejected by the Financial Creditor without any consideration arbitrarily. Furthermore, the Corporate Debtor also proposed one-time settlement on....
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....ort of forensic Auditor which inter alia had not taken into considerations various transactions and the said action of the Financial Creditor is challenged and is pending adjudication before the Hon'ble Delhi High Court in LA No. 564 of 2019. Reply pg. 15) 17. Additionally, the Corporate debtor submits that as its Account has been classified as 'fraud the Corporate debtor is unable to seek benefit of the RBI issued COVID Regulatory package dated 23.05.2020 which permitted a relaxation of the review period and the resolution period of stressed assets under the Stressed Assets Regulatory Framework'. (I.A. Pg. 21). 18. It is also submitted by the Corporate Debtor that the documents relied on by the Applicant are insufficiently stamped and hence inadmissible and cannot be acted upon. The Corporate debtor has relied on the judgments of Smartworks Coworking Spaces Private Limited v. Turbot HQ India Private Limited and N.N. Global Mercantile Private Limited. v. Indo Unique Flame Limited and Ors. (2021) 4 SCC 379 (I.A. Pg No. 14-15). 19. The Corporate Debtor has further submitted that the Application is filed without authority/incompetently that the bare perusal of the....
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....n Rejoinder: 22. The argument advanced by the Financial Creditors is that the earlier petition was filed based on the RBI circular dated 12.02.2018. However, the validity of the RBI circular dated 12.02.2018 was challenged in the matter of Dharani Sugars & Chemicals Limited v. Union of India wherein the Supreme Court held that the RBI circular dated 12.02.2018 was ultra vires and as consequence the circular became non-est. Thus, the Financial Creditor submitted that the 1st Petition was filed based on RBI circular dated 12.02.2018 and hence, could not have been filed as was concluded in the order dated 14.10.2019 of this Tribunal. (Page 6 of Rejoinder). 23. Further the Financial Creditor has submitted that the resolution plan and the revised resolution plan was rejected by the bank. Further the one time settlement proposal to the bank from the Corporate Debtor was also rejected as the One time settlement offer was not viable and on very lower side. It was further submitted by the Financial Creditor that no plan was submitted by the Corporate Debtor in the year 2019 and it could not also not do so as the account of the Corporate Debtor was declared 'fraud' pursuant to ....
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....tificate of Registration. 30. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 31. It is, accordingly, hereby ordered as follows:- (a) The petition bearing CP (IB) 3923/MB/C-I/2019 filed by Bank of India Limited, the Financial Creditor, under section 7 of the IBC read with rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Frost International Limited [CIN: U05001MH1995PLC243081], the Corporate Debtor, is admitted. (b) There shall be a moratorium under section 14 of the IBC, in regard to the following: (i) The institution of suits or continuation of pending suits or proceedings against the....