Asian Granito India Limited vs Shapoorji Pallonji And Company Pvt Ltd

Order pronounced in the open court vide separate order. In the result, the above C.P.(IB)-32(MB)/2022 is allowed and Mr. Hemendra Paliwal is appointed as IRP.

Per: H.V. Subba Rao, Member (Judicial)

The above Company Petition is filed by M/s Asian Granito India Ltd. hereinafter called as Operational Creditor seeking to initiate of Corporate Insolvency Resolution Process (CIRP) against M/s Shapoorji Pallonji and Company Pvt.Ltd. 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. 9,32,16,566 (Rupees Nine Crore Thirty Two Lakh Sixteen Thousand Five Hundred and Sixty only).

The submissions of the Operational Creditor are as follows:

The Corporate Debtor filed a detail affidavit in reply of Mr. Vivek Puranik, the authorized representative of the Corporate Debtor opposing the above Company Petition.

Heard Mr. Amir Arsiwala, counsel appearing for the Operational Creditor and Mr. Abhishk Singh, counsel appearing for the Corporate Debtor.

Mr. Arsiwala invited the attention of this Bench to the settlement agreement dated 29.07.2022 which was entered into between the parties subsequent to filing of the Company Petition whereunder both parties agreed for a settlement of Rs. 4,93,62,007/- payable in instalments commencing from August 2022 to May 2023. He further submits that the Corporate Debtor committed default in repayment from the first instalment itself. It is his submission that the Corporate Debtor paid nearly 2 lakhs short of the first instalment of Rs. 60,00,000/-, and paid 13,07,000/- against the second instalment of Rs. 54,00,000/-, and 47,90,000/- against third instalment of Rs. 54,00,000/-, and 13,07,000/- each under 4^th and 5^th instalments respectively against 54,00,000/- each due and payable under 4^th and 5^th instalments. Therefore, he submits that the corporate debtor has admitted the ‘debt’ and ‘default’ by entering into consent terms and committed further default in paying instalments due and payable under the consent terms and prayed for admission of the Company Petition.

Mr. Abhishek Singh, counsel appearing for the corporate debtor opposing the above argument submits that the last instalment being payable on 10.05.2023 the Operational Creditor cannot insist for admission of the present company petition at this stage and the short fall amount due and payable under instalments 1 to 5 is less than the threshold limit of Rs. 1 core and therefore the above Company Petition is not maintainable and cannot be admitted.

The above argument of the counsel appearing for the Corporate Debtor is not only fallacious but also misconceived and ill-conceived and is liable to be rejected, since the amount due under the remaining instalments is above one crore. In addition to the above, the threshold limit has to be looked into only at the time of the filing of the Company Petition and not on the short fall amount on account of default committed by Corporate Debtor.

Therefore, for the aforesaid reasons, there is no legal force in the above Contention raised by the Corporate Debtor. In view of the admission of the ‘debt’ and ‘default’ committed by the Corporate Debtor by way of consent terms, this tribunal did not find any valid reasons to reject the above Company Petition. The petitioner has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2. Thus, the present company Petition satisfies all the necessary requirements for admission. Accordingly, the above Company Petition is admitted by passing the following:

a. The above Company Petition No. (IB) 32 (MB)/2022 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against Shapoorji Pallonji and Company Pvt. Ltd.

b. This Bench hereby appoints Hemendra Paliwal ([email protected]) Insolvency Professional, Registration No: IBBI/IPA-001/IP-P01830/2019-2020/12788 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.2 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 only towards expenses and not towards fee till his fee is decided by COC.

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.

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, this Petition is admitted.

l. The Registry is hereby directed to communicate this order to both the parties and to IRP immediately.