M/s. Religare Comtrade Limited & Ors. vs M/s. RHC Holding Private Limited

PER: AVINASH K. SRIVASTAVA MEMBER (TECHNICAL)

This is an application, filed and registered on 24.03.2022, by the financial Creditor namely M/s. Religare Comtrade Limited (Petitioner), under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC), r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, for initiating the Corporate Insolvency Resolution Process (CIRP), against the Respondent/Corporate Debtor namely, M/s. RHC Holding Private Limited.

The Corporate Debtor ('CD') is a Private Limited Company, incorporated on 19.04.2007, having Company Identification Number ('CIN') U67190DL2007PTC162322 and is situated at G-16, Marina Arcade, Connaught Circus, New Delhi-110001.

It is further submitted that the Petitioner had disbursed the loan amount of Rs. 99,00,00,000/- (Ninety-Nine Crores) to the Corporate Debtor, by way of executing a Memorandum of Understanding ('MOU') dated 29.03.2017, as a short-term loan, repayable on 28.04.2017 at the interest rate of (14%) per annum from the date of disbursement of the loan, till the date of repayment. ([Annexure-F @pg. 92]).

It is further submitted that the CD, being unable to repay the loan amount with interest, sought extension by way of following MoU(s) as mentioned below:

However, the corporate debtor had failed to repay the total outstanding amount of Rs. 1,47,44,73,067.90/- (One hundred and forty-seven crores forty-four lakhs seventy-three thousand sixty-seven only) to the Petitioner as on 08.01.2021.

It is further seen that, after repeated reminders and delivery of demand notices dated 04.09.2018 and 10.07.2020 to the CD, the debt has still remained unpaid. However, this application is filed and registered on 24.03.2022, giving the debt due and payable as on 08.01.2021, however in the present case the date of default is 13.10.2018, in terms of the 8^th (last) MoU and the period of limitation would expire on 12.10.2021.

However, the Ld. Counsel for the Petitioner is supported by the Hon'ble Supreme Court's vide order dated 10.01.2022 In Re: Cognizance for Extension of Limitation [Suo Motu Writ Petition (C) 3 of 2020] where the apex court directed the exclusion of the period from 15.03.2020 till 28.02.2022 for the purposes of calculating limitation. The relevant extracts of the order is reproduced below:

Notice was ordered by this Adjudicating Authority to be issued by the Petitioner on 28.03.2022. Accordingly, the respondent was served duly by way of Dasti as well as through mail. However, CD remained absent nor filed any reply , hence he was proceeded ex-parte on 12.4.2022.

We have heard the Ld. Counsel for the petitioner and perused the documents submitted by it. Considering the submissions made and documents placed on record, we find that default has occurred in repayment of the financial debt as on 13.10.2018 and no representation has been made by the Corporate Debtor . In view of above, we are inclined to allow this Petition.

Further, we are supported by the judgement of the Hon'ble Supreme Court in the Innoventive Industries Ltd. Vs. ICICI Bank and Anr.(2018) 1 SC 407. which clearly held that:

Therefore, we are satisfied that, in the present petition financial debt is due and payable. Petitioner has approached this Tribunal, within the period of limitation as extended by Hon'ble Supreme Court in suo motu W.P.© 3 of 2020.

The Petition is filed in the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code and is complete. We are satisfied that a default has occurred, and debt has remained unpaid. Accordingly, the application is admitted and CIRP is ordered to be initiated against the CD.

The Applicant has proposed the name of Interim Resolution Professional (IRP), Mr. Gautam Singhal, having registration No. IBBI/IPA-001/IP/P-01437/2018-19/12240, and email id [email protected]. A written communication sent by him in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record. There is a declaration made by him that no disciplinary proceedings are pending against him in the Insolvency and Bankruptcy Board of India (IBBI) or ICSI. In addition, further necessary disclosures have been made by Mr. Gautam Singhal as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7 (3) (b) of the Code. Hence, we appoint Mr. Gautam Singhal as the IRP of the Corporate Debtor.

In pursuance of Section 13 (2) of the Code, we direct the IRP to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression ‘immediately’ means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

As a consequence of the application being admitted, moratorium as envisaged under the provisions of Section 14(1) shall follow. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(3) of the Code shall come in force.

We direct the Petitioner/ Financial Creditor to deposit a sum of Rs. 2 lacs with the IRP Mr. Gautam Singhal to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of IBBI (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the applicants. The amount however be subject to adjustment by the Committee of Creditors as accounted for by IRP and shall be paid back to the applicant.

The registry is directed to communicate a copy of the order to the Applicants, the CD, the IRP and the Registrar of Companies, NCR, New Delhi at the earliest but not later than seven days from today. The Registrar of Companies shall update his website by updating the status of ‘Corporate Debtor’ and specific mention regarding admission of this petition must be notified.