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Judgment
The case is fixed for pronouncement of order.
The order is pronounced in open court vide separate sheet.
The instant application has been filed by M/s Veertam Comtrade Private Limited ('Corporate Applicant') under Section 10 of the Insolvency and Bankruptcy Code, 2016 with a prayer to initiate the Corporate Insolvency Resolution Process as the Corporate Debtor being the Corporate Applicant itself. The Corporate Applicant has committed default in paying the debt as mentioned in the Part -III of the Application is financial debt of Rs.11,50,00,000/- of 2 Financial Creditors.
The Corporate Applicant is a private limited company incorporated on 16.05.2011 under the provisions of the Companies Act, 2013.
The averments made by the Corporate Applicant in the application, which are necessary for adjudicating the matter are summarized as under: -
i. It is submitted that there are 2 financial creditors namely, Komaf Financial Services Private Limited; and Infina Finance Private Limited. It is submitted that the total debt raised was Rs. 17.50 crores consisting of Rs.3,00,00,000/- by Komaf Financial Services Private Limited and Rs.14,50,00,000/- by Infina Finance Private Limited.
The corporate applicant defaulted in the payment of Rs.11,50,00,000/- consisting Komaf Financial Services Private Limited: Rs. 3,00,00,000/- and Infina Finance Private Limited: Rs. 8,50,00,000/-. iii. Therefore, the board of directors of the Corporate Applicant vide its board resolution dated 14.12.2022, resolved to file application under Section 10 of the Insolvency and Bankruptcy Code, 2016 and to sign the petition for initiating the Corporate Insolvency Resolution Process against itself under Section 10 of the IBC, 2016. The relevant Extract of the Board Resolution is reproduced below:
"RESOLVED THAT pursuant to provisions of Section 10 of the Insolvency and Bankruptcy Code ("Code") the consent of the members be and is hereby accorded to file an application before the Hon'ble National Company Law Tribunal, Ahmedabad Bench for initiating Corporate Insolvency Resolution Process ("CIRP") of the Company;
The Corporate Applicant submits the below mentioned documents to prove the existence of default of the debt: -
a. List of names of Financial Creditors along with their respective addresses and amounts outstanding.
b. Copy of the audited Financial Statements for the financial years 2020-2021, 2021-2022, 2022-2023 and 2023-2024.
c. Copy of demand notice(s) issued by creditor(s) along with ledgers to clear outstanding debt.
d. Copy of sanction letters issued by Infina Finance Private Limited.
e. Copies of the ICD receipts issued to Komaf Financial Services Private Limited.
The corporate applicant proposed the name of Mr. Chetan T. Shah to act as an IRP. Consent Form 2 dated 12.05.2023 is filed. The letter of Authorization for Assignment dated 18.01.2024 is also placed on record.
In compliance of order dated 18.06.2024 the applicant served notice upon the financial creditors. The Unsecured financial creditors namely, Komaf Financial Services Pvt Ltd and Infina Finance Pvt Ltd submitted their no objection in the matter by way of an affidavit dated 13.04.2024.
The applicant filed its compliance affidavit dated 19.07.2024 and submitted that the corporate applicant is not regulated or registered with any regulator under any special legislation including SEBI Act, 1992, Insurance Act, 1938 or RBI Act, 1934. It further submits that it is not ineligible under Section 11 of the IBC, 2016 and no bar is exists for initiation of CIRP against the Corporate applicant under section 10 of IBC, 2016. The applicant with regards to the debt and default submitted that the defaults have been continuously appearing in the Audited Financial Statements of the Applicant Company.
The applicant further relies upon the judgement of the Hon'ble Supreme Court in the matter of "M/s. B K Educational Services Pvt. Ltd. Vs. Parag Gupta and Associates" (Civil Appeal No. 23988 of 2017), wherein it was held that the law of limitation applies to only applications filed under section 7 and 9. The applicant further relies upon the order passed by Hon'ble NCLT, Delhi, in the matter of "Worldwide Tours Pvt. Ltd." (C.P. I.B. 865/ND/2020), wherein it was held that the Limitation Act, 1963 is not applicable to an application under Section 10 of the IBC, 2016. It further placed the March, 2018 Report of "Insolvency Law Committee" to support its contentions. Reliance is further place upon the judgements of Hon'ble NCLAT, in the matter of "M/s. Unigreen Global Private Limited Vs. Punjab National Bank & Ors." (Company Appeal (AT) (Insolvency) No. 81 of 2017) and in the matter of "Pondicherry Extraction Industries Pvt. Ltd. vs. Bank of Baroda" (Company Appeal (AT) (Ins) No. 471 of 2020).
The corporate applicant filed its Audited Financial Statements for the FY 2023-2024 in compliance of order dated 17.02.2025.
Both the parties filed their written submissions.
Heard the Counsel for the applicant and the financial creditors. Perused material available on record. We have also examined the Financial statement (audited) submitted. There are no assets of the company. Both the unsecured financial creditors have given no objection to this application.
In view of the above we pass the following orders:
ORDER
I. CP (IB)/154/NCLT/AHM/2023 is allowed.
II. We hereby appoint Mr. Nilesh Kothari, IBBI Reg. No. IBBI/IPA-002/PNo.1225/2022-23/14132, email ID [email protected] as the Interim Resolution Professional (IRP) under Section 13(1) (c) of the Code.
III. That the order of Moratorium under Section 14 of the Code shall come to effect from the date of this order, till the completion of the Corporate Insolvency Resolution Process (CIRP) or until this Bench approves the Resolution Plan under Subsection (1) of Section 31 or passes an order for 'Liquidation' of the Corporate applicant under Section 33 as, the case may be.
IV. That the Provisions of Section 14 sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.
V. However, in terms of Section 14(2) to 14(3) of the Code, the supply of essential goods or services to the corporate debtor as may be specified, if continuing, shall not be terminated or suspended, or interrupted during the moratorium period.
VI. The IRP so appointed shall make Public announcement of Corporate Insolvency Resolution Process (CIRP) immediately as specified under Section 13 of the Code and will call for submissions of claims under Section 15 of the Code.
VII. The IRP shall perform all his functions which are contemplated, inter-alia, by Sections 17,18,20 & 21 of the Code. It is further made clear that all personnel connected with Corporate Applicant, its Promoter or any other person associated with management of the Corporate applicant are under legal obligation under Section 19 of the Code to extend every assistance and co-operation to the Interim Resolution Professional. Where any personnel of the Corporate Applicant, its Promoters or any other person required to assist or co-operate with IRP, does not assist or Co-operate, IRP is at liberty to make application to this Tribunal with a prayer for passing an appropriate order.
VIII. The IRP shall be under duty to protect and preserve the value of the property of the ‘Corporate applicant’ and manage the operations of the Corporate Applicant as a going as a part of its obligation imposed by Section 20 of the Insolvency & Bankruptcy Code, 2016.
IX. We direct the applicant to pay IRP a sum of Rs.2,00,000/- (Rupees Two Lakh Only) in advance within a period of 7 days from the date of this order to meet the cost of CIRP arising out of issuing public notice and inviting claims till the CoC decides about his fees/expenses.
X. The Registry is directed to communicate this order to the Operational Creditor, corporate debtor, and to the Interim Resolution Professional, the concerned Registrar of Companies and the Insolvency and Bankruptcy Board of India after completion of necessary formalities, within seven working days and upload the same on the website immediately after pronouncement of the order. The Registrar of Companies shall update its website by updating the Master Data of the Corporate Debtor in MCA portal specific mention regarding admission of this Application and shall forward the compliance report to the Registrar, NCLT.
XI. The commencement of the Corporate Insolvency Resolution Process shall be effective from the date of this order.