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Judgment
ORDER
Per: Justice P. N. Deshmukh, Member
This is a Company Petition is filed under section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) by Cash Ur Drive Marketing Private Limited ("Financial Creditors"), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Viaan Industries Limited ("Corporate Debtor").
The Corporate Debtor is a Public company limited by shares and incorporated on 19.10.1982 under the Companies Act, 1956, with the Registrar of Companies, Maharashtra, Mumbai. Its Corporate Identity Number (CIN) is L52100MH1982PLC291306. Its registered office is at Saisha Bungalow No. 10/87, Mhada, SVP Nagar, Janki Devi School Road, Versova, Andheri West, Mumbai - 400053. Therefore, this Bench has jurisdiction to deal with this petition.
Submissions made by Financial Creditor by way of Application/Petition:
The Corporate Debtor, pursuant to a loan agreement dated 12.11.2017, had borrowed the amount of Rs.3, 90,00,000/- from the Financial Creditor for a period of 18 months at 12% per annum. Copy of Loan agreement is annexed as “Exhibit - 2” to the Petition.
From March 31, 2018 to December 31, 2021 interest of Rs.1,42,91,760/- was accrued on the loan and Rs. 3,14,61,000/-was received from Corporate Debtor against principal and interest.
The Financial Creditor on 19.08.2019 and 05.01.2020 duly served to the said Corporate Debtor, a reminder letter calling upon the Corporate Debtor to pay to Petitioners the outstanding loan amount. Copy of Notices are annexed as “Exhibit – 6 & 7” to the Petition.
The total amount of debt as on the date of filing this Application including interest is Rs. 2,18,30,760/- (Rupees Two Crores eighteen lakhs thirty thousand seven hundred and sixty only) dated of default was 13.05.2019.
Submissions made by the Advocate of Corporate Debtor by way of Affidavit in Reply:
The Corporate Debtor does not dispute the liability and the balance confirmation given. However, the Corporate Debtor submits that the present Company Petition has been filed with the sole motive of recovery of money and not for resolution. It is also submitted that the Corporate Debtor is unable to pay at the moment but willing to pay the entire amount in 60 monthly instalments starting from 01.01.2023.
We have heard the arguments of Financial creditor and Corporate Debtor and perused the records.
We have also considered the facts of the case in the lights of Judgement in the case of Swiss Ribbons Pvt. Ltd. & Ors. Vs. Union of India & Ors. [Writ Petition (Civil) No. 99 of 2018] wherein the Hon’ble Supreme Court held that in section 7 of the Petition when the debt and default is proved the Adjudicating Authority bound to admit the Petition. Unlike section 9 where the scope to look into, disputes which is necessary to be considered before admission of the Petition. In view of the above, the facts and present Petition reveals that the Corporate Debtor has admitted the debt and the same is due and payable.
The Financial Creditor has proposed the name of Mr. Prakash Dattatraya Naringrekar, Registration No. IBBI/IPA-002/IP-N00270/2017-2018/10783, as the Interim Resolution Professional of the Corporate Debtor. He has filed his written consent in Form 2 as required under rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with a copy of his Certificate of Registration.
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.
It is, accordingly, hereby ordered as follows: -
The petition bearing CP (IB) 110/MB/C-II/2022 filed by Cash Ur Drive Marketing Private 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 Viaan Industries Limited [CIN: L52100MH1982PLC291306], the Corporate Debtor, is admitted.
There shall be a moratorium under section 14 of the IBC, in regard to the following:
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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002;
The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor.
Notwithstanding the above, during the period of moratorium:
The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period;
That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator;
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.
Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.
Mr. Prakash Dattatraya Naringrekar, Registration No. IBBI/IPA-002/IP-N00270/2017-2018/10783, having address at 503-A, Blue Diamond CHS Ltd, Chincholi Bunder/Link Road Junction, Malad West, Mumbai - 400064, [email: [email protected]], is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the IBC. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions issued/as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the IBC.
During the CIRP Period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow.
The Financial Creditor shall deposit a sum of Rs.3,00,000/-(Rupees Three Lakhs only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC).
Registry is directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from the date of this Order.
IRP is directed to send a copy of this Order to the Registrar of Companies, Maharashtra, Mumbai, for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regard to the Registry of this Court within seven days from the date of receipt of a copy of this order.