Mrs Pinki Aggaral

Per: Shri Prasanta Kumar Mohanty, Technical Member

This Petition, numbered as CP No. (IB) 59/94/JPR/2022, is filed under Section 94(1) of the Insolvency and Bankruptcy Code, 2016 (‘The Code/IBC’) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 (‘Rules’) by the Applicant/ Personal Guarantor Mrs Pinki Aggarwal through Resolution Professional Mr Arunesh Kumar Dubey. The prayer made is to initiate the insolvency resolution process in respect of Mrs. Pinki Aggarwal, being the Personal Guarantor for M/s Sewa Steels Pvt. Ltd. (‘Corporate Debtor’).

It has been submitted that the Corporate Debtor in the year 2016 had approached few lenders including M/s Ram Alloy Castings Private Limited for availing a loan of Rs. 1,64,00,000/- (Rupees One Crore Sixty-Four Lakhs Only). Mr. Birendra Kumar, sole working director of the Corporate Debtor passed away due to COVID-19 on 03.05.2021 and the business of the Corporate Debtor was suspended. Since then, the Corporate Debtor has defaulted in certain repayments, two Company Petitions came to be filed against the Corporate Debtor by one Mr. Satish Goel proprietor of M/s Masterji Steels and M/s Ram Alloy Castings Private Limited bearing CP No. (IB)- 90/9/JPR/2021 and CP No. (IB)- 04/7/JPR/2022 respectively.

In the year 2012, HDFC Bank had sanction the working capital and other loans which were renewed and sanctioned vide letter dated 05.09.2020. Thereafter, a credit facility amounting to Rs. 13,50,00,000/- (Rupees Thirteen Crore Fifty Lakh Only) was sanctioned wherein M/s Beekay Ship Breakers Pvt. Ltd., Mr. Varendra Kumar Jindal and Ms. Pinki Aggarwal gave Personal Guarantee. Further during COVID-19, HDFC Bank sanctioned a loan under Guaranteed Emergency Credit Line Scheme to the tune of Rs. 2,68,00,000/- (Rupees Two Crore Sixty-Eight Lakh Only) to the Corporate Debtor. Due to suspension of business activities, the Corporate Debtor failed to make periodic payments therefore HDFC Bank via Loan Recall Notice dated 19.07.2021 served a notice recalling payment of loan to the Corporate Debtor and other Guarantors.

It is pertinent to note that CIRP against the Corporate Debtor has already been initiated in CP No. (IB)- 02/9/JPR/2022 titled as Mr. Pawan Garg, Prop. of M/s V.R. Trading Company v. M/s Sewa Steels Private Limited & Ors. by this Authority vide order dated 25.05.2022.

It is clear that the applicant has failed in fulfilling her obligations pursuant to the personal guarantee given to the corporate debtor, as a result of which the applicant is a debtor in default and is accordingly eligible to file the instant application under the provisions of section 94(1) of the Insolvency and Bankruptcy Code, 2016, read in consonance with the applicable rules under the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process of Personal Guarantors to Corporate Debtors) Rules, 2019.

It is seen that the Applicant in Part III of the application has mentioned the amount of default to be Rs. 29,07,58,644/- (Rupees Five Crore Twenty-Five Lac Sixty-Six Thousand and Six Hundred only) whereas the date of default is not declared. A list of all pending debts due at Page 48 of the Application which depicts a total due of Rs. 11,25,58,479/- (Rupees Eleven Crore Twenty-Five Lakh Fifty-Eight Thousand Four Hundred and Seventy-Nine Only) has also been filed with the application.

The Application has been filed in respect of debts which are not excluded debts as enumerated under Section 79(15)(e) of the Code. The Applicant has filed an affidavit stating that he is not barred in terms of Section 94(4) of the Code. The Application under consideration is in a Form-A format and accompanied with the required fees as prescribed and contains the required details. Thus, prima facie the requirements of Section 94 of the Code are fulfilled.

As stipulated under Section 96(1) of the Code interim moratorium commences from the date of filing of the Application under Section 94 or 95. Accordingly, in the instant matter interim moratorium commences from 29.07.2022 i.e., from the date of filing of the instant Application, concerning all the debts, and interim moratorium shall cease to have effect from the date of admission of the Application. During the interim-moratorium period- (i) any pending legal action or proceeding in respect of any debt shall be deemed to have been stayed; and (ii) the creditors of the Applicant/debtor shall not initiate any legal action or proceedings in respect of any debt. As per Section 96(3) of the Code, provisions of sub-section 96(1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.

As per Rule 6(2) of the Rules, the Guarantor has served a copy of this application to every financial creditor and the corporate debtor for whom the guarantor is a personal guarantor. It is seen that the Guarantor has annexed proof of service to the creditors and Corporate Debtor in form of postal slips. The Authority had further directed to ensure service upon all Financial Creditors and file affidavit of service vide Order dated 09.09.2022. In compliance of the same, the Applicant has preferred Affidavit of Service vide Diary No. 3047/2022 dated 14.10.2022. Along with the Affidavit of Service, the Applicant has filed a list of Creditors of the Corporate Debtor wherein it is seen that a total of Rs. 30,25,15,199/-(Rupees Thirty Crore Twenty-Five Lakh Fifteen Thousand One Hundred and Ninety-Nine Only) is the amount due to the Financial and Operational Creditors. It is seen that there was representation on behalf of Bajaj Finance Limited and no reply was filed, hence the opportunity to file reply was closed vide Order dated 13.01.2023.

It is noted that no application under Chapter III of Part III of the Code has been admitted before this Adjudicating Authority in respect of the Applicant/Debtor during twelve months preceding the date of submission of the instant Application. The Applicant is directed to file an affidavit stating that no application under Chapter III of Part III of the Code has been admitted before this Adjudicating Authority in respect of the Applicant/Debtor during twelve months preceding the date of submission of the Application within 7 days from the date of passing of this order. This order shall come into effect after the said affidavit has been filed by the Applicant.

The Applicant has proposed the name of Resolution Professional; therefore, this Authority is hereby appointing Mr. Arunesh Kumar Dubey bearing Registration No. IBBI/IPA-002/IP-N00858/2019-20/12767 with the e-mail address [email protected] and phone number +919999823231 as the RP in the present matter.

In this matter, the Resolution Professional appointed herein, Mr. Arunesh Kumar Dubey, shall exercise all the powers as enumerated under Section 99 of the Code read with Rules made thereunder. He is directed to recheck availability of all information as per the relevant Rules & Forms. He is also directed to make recommendations with reasons in writing for acceptance or rejection of this Application within the stipulated time as envisaged under the provisions of Section 99 of the Code. The Resolution Professional shall provide a copy of the report under sub-section 7 of Section 99 to the Applicant / Debtor, all the Financial Creditors and related Corporate Debtors for whom the Applicant is a Personal Guarantor as soon as the same is filed before this Adjudicating Authority. The Applicant shall provide a copy of the Application, if not provided already, along with this order to IBBI for its records.

Copy of this order be supplied to the Applicant. The Registry is directed to immediately send a soft copy of the instant Application along with this order to the RP nominated herein on his e-mail id.

In the circumstances, CP No. (IB)- 59/94/JPR/2022 is allowed.