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Judgment
Per: Shri Raghu Nayyar, Technical Member
This Application is filed by M/s Roshan Colonisers Pvt. Ltd. ('Applicant'), claiming to be a Financial Creditor, through its Director, Mr. Sharwan Kumar Sharma, who is duly authorized vide Board resolution dated 02.01.2020 to file this Application against Grateful Buildinfra Private Limited ('Respondent' / 'Corporate Debtor') under Section 7 of the Insolvency and Bankruptcy Code ('IBC' / 'Code'), 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, seeking initiation of Corporate Insolvency Resolution Process ('CIRP'), pursuant to default committed by the Respondent in repayment of loan amount to the Applicant. It is seen that the Applicant had impleaded the Union of India, Ministry of Corporate Affairs as parties in this matter. As this is a Section 7 application under IBC, Ministry of Corporate Affairs has no role to play and its inclusion in the array of parties is irrelevant and inconsequential. This matter is considered accordingly.
The Applicant / Financial Creditor is a Private Limited Company incorporated under the Companies Act, 1956 on 28.04.2005 and duly registered with the Registrar of Companies, Jaipur, bearing CIN: U70101RJ2005PTC020672. The registered office of the Applicant Company is at Shop No. 9-10, Narayan Sagar, Block A, Near Narayan Vihar, Gopalpura Byepass, Ajmer Road, Jaipur - 302020 (Rajasthan).
The Respondent is a Private Limited Company, incorporated under the Companies Act, 1956 on 06.09.2012 and duly registered with the Registrar of Companies, Jaipur bearing CIN: U70101RJ2012PTC040011. The Registered Office of the Company is at G-123, Ramanuj Path, Shyam Nagar, Jaipur - 302019 (Rajasthan). The Authorised Share Capital of the Respondent is Rs. 10,00,000/- (Ten Lakhs Only) and the Paid-up Share Capital is Rs. 1,00,000/- (One Lakh Only).
It is submitted by the Applicant / Financial Creditor that it entered into a loan agreement with the Respondent / Corporate Debtor on 20.12.2016 vide which the Applicant advanced a loan of Rs. 30,00,000/- to the Corporate Debtor. In pursuance of the said loan agreement, a sum of Rs. 15,00,000/- was disbursed on 23.12.2016 and the remaining Rs. 15,00,000/- was disbursed on 28.02.2018. As per the loan agreement, the Respondent was under obligation to repay the loan advanced by the Applicant not later than 3 years from the date of the first disbursement or upon sale of the finalized property, whichever is earlier, along with 40% of gross profits earned upon the sale of the finalized property. Since, the sale of property was not finalized, therefore in terms of the said agreement, the debt fell due on 22.12.2019. However, the same was not repaid.
As a consequence, this Application was filed. As claimed by the Applicant, the Respondent is liable to pay an amount of Rs. 30,00,000/- as reflected in Part IV of Form- 1 filed.
Part IV
| S. No. | Particulars of Financial Debt | |
| 1. | Total amount of debt granted Date(s) of Disbursement | Amount of Debt Granted: Principal Amount Rs. 30,00,000/- Amount of Rs. 15,00,000/- Date: 23.12.2016 Amount of Rs. 15,00,000/- Date: 28.02.2018 |
| 2. | Amount claimed to be in default and the date on which the default occurred | Amount Claimed: Rs. 30,00,000/- (Thirty Lakhs Only) Date from Which Debt Fell Due: 22.12.2019 |
The Respondent has filed reply on 12.03.2020 and has stated that it was in need of finances for business and availed Rs. 30,00,000/- loan for the same, to be returned within 3 years of first disbursement. However, due to poor market conditions and acute slump in the real estate industry, the business of the Respondent suffered and it was not in a state to return the loan amount to the Applicant.
The Respondent also stated that it informed the Applicant of their condition and requested them to extend the time for repayment but the Applicant did not pay heed to the same. The Respondent has submitted that the debt incurred is undisputed and is willing to return the loan amount in due course of time.
Upon a detailed consideration of the application and documents filed by the Applicant, it is apparent that the payment of claim amount has been defaulted by the Corporate Debtor. Hence, this Tribunal is inclined to initiate CIRP against the Corporate Debtor as envisaged under the provisions of IBC, 2016.
The Applicant has named one Mr. Shailesh Dayal with Registration No. IBBI/IPA-002/IP-N00834/2019-20/12630, duly registered with the Insolvency and Bankruptcy Board of India, to be appointed as the Interim Resolution Professional ('IRP'). The Applicant has filed Consent in Form 2 under Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016, stating therein that no disciplinary proceedings are pending against the named IRP. The credentials of the proposed IRP have been checked from IBBI website (www.ibbi.gov.in) and nothing adverse is found on record.
Consequences of initiation of CIRP shall be inter-alia as follows:
The Insolvency Resolution Professional proposed by the Applicant Mr. Shailesh Dayal is hereby appointed as the IRP to take over the affairs of the Corporate Debtor and duties as required to be performed by him under the provisions of IBC, 2016 including issue of publication in widely circulated Newspapers as contemplated under the provisions of IBC, 2016 and calling for the claims from the creditors of Corporate Debtor and collation of the same shall be done.
Further, as a sequel of admission, moratorium as envisaged under Section 14 of IBC, 2016 is invoked in relation to the Corporate Debtor which will be in vogue during the Corporate Insolvency Resolution Process of the Corporate Debtor. The IRP shall carry out CIRP strictly as per the timelines specified and as envisaged under the provisions of IBC, 2016 in relation to the Corporate Debtor.
The said IRP shall act strictly with the provisions of IBC, 2016 and with a view to defray his expenses to be incurred and fees on account, the Applicant is directed to deposit a sum of Rs. 2,00,000/- (Two Lakhs Only) to the account of IRP within three days from the date of this order. The IRP shall duly file a status report apprising this Tribunal about the progress of CIRP unfolded in relation to the Corporate Debtor. In terms of Section 17 & 19 of IBC, 2016 all personnel of the Corporate Debtor including promoters and Board of Directors, whose powers shall stand suspended shall extend all cooperation to the IRP during his tenure as such and the management of the affairs of the Corporate Debtor shall vest with the IRP.
In terms of Section 7 of IBC, 2016, this order shall be communicated at the earliest, not exceeding one week from today, to the Applicant, Corporate Debtor as well as the IRP appointed by this Tribunal to carry out the CIRP. A copy of this order shall also be communicated to IBBI for its records.
In the circumstances, CP No. (IB) 20/7/JPR/2020 is admitted.