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Judgment
ORDER
Mr. Rajeev Waglay, Advocate appeared for Petitioner.
Counsel appearing for the Corporate Debtor, Mr. Asav Rajan, Advocate, requested time for filling reply on the ground that the Petition copy was not served on them. In fact, this matter has been listed on board from time to time since 18.08.2021.
On 09.11.2021, one Mr. Sandeep Bajaj, Advocate appeared on behalf of the Corporate Debtor and he did not raise any issue of non-service of Petition copy on them. In addition to the above, the Counsel appearing for the Petitioner filed service affidavit on 30.08.2021 along with copy of the notice sent to the Corporate Debtor in which it was clearly mentioned that the Petition copy along with all Annexures have been furnished to the Corporate Debtor. The said notice was duly acknowledged and signed by the Corporate Debtor with the stamp and seal.
Neither Mr. Sandeep Bajaj, Advocate nor Mr. Asav Rajan, Advocate have filed their Vakalatnama so far in the above matter and they have no locus to represent the Corporate Debtor.
Hence, the Corporate Debtor is set ex-parte. Heard the Counsel appearing for the Petitioner and perused the material available on record. The Counsel appearing for the Petitioner invited the attention of this Bench to the deed of settlement dated 17.11.2017 wherein the Corporate Debtor has agreed to pay an amount of Rs. 13,00,59,750/- within a period of 41 months starting from November, 2017.
The Counsel appearing for the Petitioner submits that the Corporate Debtor made few payments in terms of deed of settlement last being on 03.03.2020 and thereafter the Corporate Debtor made payments on 06.03.2020, 12.03.2020 and 18.03.2020. But all these payments were dishonored. Therefore, the Petitioner issued demand notice in Form-3 dated 04.12.2020 demanding payment of Rs. 8,29,38,532/- for which there was no response from the Corporate Debtor. Hence, the Petitioner prayed for admission of the above Company Petition.
After hearing the submissions and upon perusal of material available on record, this Bench is of the considered opinion that the above company petition is nothing but a second round of litigation and there is a clear admission on the part of the Corporate Debtor with regard to the debt and default and there is no valid reason for rejecting the above company petition.
Since, the Corporate Debtor did not choose to file any reply, the claim of the Petitioner remains unchallenged.
In view of the above facts and observations, CP 753 of 2021 is admitted. Detailed order follows.
The above Company Petition is filed by Ashish Interbuild Private Limited hereinafter called as “Petitioner” seeking to initiate of Corporate Insolvency Resolution Process (CIRP) against Sahara Hospitality Limited called as “Corporate Debtor” by invoking the provisions of Section 9 Insolvency and Bankruptcy code (hereinafter called “Code” read with rule 6 of Insolvency & Bankruptcy (Application to Adjudication Authority) Rules, 2016 for a Resolution of an unresolved Operational Debt of Rs. 8,29,38,532/-.
Petitioner is in the business of interior contracting and did the work for the Corporate Debtor during the period 2013-2017. Petitioner raised invoices from time to time and the same were accepted and acknowledged by the Corporate Debtor. The Corporate Debtor has failed and neglected to make the payment against the said invoices even after repeated requests.
Counsel appearing for the Corporate Debtor, Mr. Asav Rajan, Advocate, requested time for filling reply on the ground that the Petition copy was not served on them. In fact, this matter has been listed on board from time to time since 18.08.2021.
On 09.11.2021, one Mr. Sandeep Bajaj, Advocate appeared on behalf of the Corporate Debtor and he did not raise any issue of non-service of Petition copy on them. In addition to the above, the Counsel appearing for the Petitioner filed service affidavit on 30.08.2021 along with copy of the notice sent to the Corporate Debtor in which it was clearly mentioned that the Petition copy along with all Annexures have been furnished to the Corporate Debtor. The said notice was duly acknowledged and signed by the Corporate Debtor with the stamp and seal. Neither Mr. Sandeep Bajaj, Advocate nor Mr. Asav Rajan, Advocate have filed their Vakalatnama so far in the above matter and they have no locus to represent the Corporate Debtor. Hence, the Corporate Debtor is set ex-parte.
Heard the Counsel appearing for the Petitioner and perused the material available on record. The Counsel appearing for the Petitioner invited the attention of this Bench to the deed of settlement dated 17.11.2017 wherein the Corporate Debtor has agreed to pay an amount of Rs. 13,00,59,750/- within a period of 41 months starting from November, 2017.
The Counsel appearing for the Petitioner submits that the Corporate Debtor made few payments in terms of deed of settlement last being on 03.03.2020 and thereafter the Corporate Debtor made payments on 06.03.2020, 12.03.2020 and 18.03.2020. But all these payments were dishonored.
Therefore, the Petitioner issued demand notice in Form-3 dated 04.12.2020 demanding payment of Rs. 8,29,38,532/- for which there was no response from the Corporate Debtor. Hence, the Petitioner prayed for admission of the above Company Petition.
After hearing the submissions and upon perusal of material available on record, this Bench is of the considered opinion that the above company petition is nothing but a second round of litigation and there is a clear admission on the part of the Corporate Debtor with regard to the debt and default and there is no valid reason for rejecting the above company petition.
Since, the Corporate Debtor did not choose to file any reply, the claim of the Petitioner remains unchallenged.
ORDER
a. The above Company Petition No. (IB) 753 (MB)/2021 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against M/s. Sahara Hospitality Limited.
b. Since the Operational Creditor has not suggested the name of any person to perform the duties of the Interim Resolution Professional (IRP) in the petition, this Bench is appointing the IRP from the list furnished by the Insolvency and Bankruptcy Board of India (IBBI). This Bench hereby appoints Mr. Manish Shah ([email protected]) (Mobile No. 9821071894) Insolvency Professional, Registration No: IBBI/IPA-001/IP-P00094/2017-18/10194 as the interim resolution professional to carry out the functions as mentioned under the Insolvency & Bankruptcy Code, 2016.
c. The Operational Creditor shall deposit an amount of Rs.5 Lakhs towards the initial CIRP costs by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. The IRP shall spend the above amount towards expenses and not towards fee.
d. That this Bench hereby prohibits the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.
e. That the supply of essential goods or services to the Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period.
f. That the provisions of sub-section (1) of Section 14 shall not apply to such transactions 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 pronouncement of this order till the 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 made immediately as specified under section 13 of the Code.
During the CIRP period, the management of the corporate debtor will vest in the IRP/RP. The suspended directors and employees of the corporate debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP/RP.
j. Registry shall send a copy of this order to the Registrar of Companies, Mumbai, for updating the Master Data of the Corporate Debtor.
k. Accordingly, CP 753 of 2021 is admitted.
l. The Registry is hereby directed to communicate this order to both the parties and to IRP immediately.