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Judgment
Per: Rajesh Sharma, Member (Technical)
This is an application being C.P. (IB) No. 3176/NCLT/MB/C- IV/2019 filed by Noble Co-operative Bank Limited, the Financial Creditor/Applicant, under section 7 of Insolvency & Bankruptcy Code, 2016 (I&B Code) against Independent TV Limited, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP).
The Application is filed by Mr. Ranjit Kansal, authorised signatory of Financial Creditor vide its Resolution No.4 from the Extract of the Minutes of the meeting dated 09.08.2019 at Pg.192 A as Exhibit-14, claiming a total default of Rs.62,73,407/- (Rupees Sixty Two Lakh Seventy Three Thousand Four Hundred Seven Only) along with simple interest @10% p.a. and Penal Interest @2.5% p.m. along with legal/recovery and incidental charges on the above said outstanding amount as on 31.07.2019 till payment and/or realisation.
The Applicant submitted that it agreed to make available to Corporate Debtor a Term Loan Facility for Rs. 63,00,000/- (Rupees Sixty-Three lakh only) for the purpose of financing 8 vehicles to be purchased in the name of Corporate Debtor. That the said loan was agreed by the Corporate Debtor to be repaid in 60 equated monthly instalments of Rs.1,33,856/- (Rupees One Lakh Thirty Three Thousand Eight Hundred and Fifty Six Only) each to be paid on (10^{\text{th}}) of every month. The said loan facility was made available to the Corporate Debtor in accordance with and subject to the terms and conditions of the Sanction Letter dated 03.01.2019. The copy of the Sanction Letter is annexed at Pg. 25 as Exhibit-2 to the Application.
The Applicant submitted that on occurrence of any of the eventuality as contained in Clause 9 of Vehicle Loan Agreement, the entire balance outstanding shall become forthwith due and payable by the Corporate Debtor to the Financial Creditor.
The Applicant also submitted that the said loan agreement was also secured through hypothecation of the said vehicles in the name of the Financial Creditor vide Hypothecation Agreement and Corporate Debtor was made to execute the Deed of Guarantee for the same. The copy of Deed of Guarantee is annexed as Exhibit-4 to the application.
The Financial Creditor had financed 8 Mahindra Bolero Vehicles to the Corporate Debtor of the total value of Rs.70,54,912/- (Rupees Seventy Lakh Fifty Four Thousand Nine Hundred and Twelve Only). The bank disbursed Rs.63,00,000/- (Rupees Sixty-Three lakh only) and balance amount was arranged by the Corporate Debtor. Financial Creditor made the payment of Rs.70,54,912/- (Rupees Seventy Lakh Fifty Four Thousand Nine Hundred and Twelve Only) via Pay Order No.142703, dated 03.01.2019 in the name of the Car Dealer.
The Applicant submitted that the date of first Default by the corporate Debtor is 10.06.2019 and thereafter Corporate Debtor regularly failed to pay the loan amount and subsequent interest.
The Applicant submitted that they sent a notice dated 20.06.2019 to the Corporate Debtor, however the Respondent failed to reply to the same or make payment of the debt. The copy of the said notice is annexed at Pg.169 as Exhibit-11.
The applicant submitted that they sent subsequent Pre-Recall Notices dated 04.07.2019 and 12.07.2019 respectively to the Corporate Debtor for the realization of the payment of the loan amount but Corporate Debtor again failed to reply to the same. The copies of the Pre-Recall Notices dated 04.07.2019 and 12.07.2019 respectively have been annexed at Pg 178-179 as Exhibit-12 and Pg. 190-192 as Exhibit-13 respectively.
The date of declaration of loan account of the Corporate Debtor as NPA is 10.08.2019.
The Applicant also produced by way of Additional Affidavit, certain documents namely the Registration Certificates of eight vehicles, challan fees deposited, E-challans receipts issued by RTO authorities and other documents like Certificate of Insurance of the vehicles etc, clearly demonstrating the name of Financial Creditor in whose favour the vehicles are hypothecated.
The Corporate Debtor filed an application MA 206/2020 on 17.01.2020 under Section 65 of Insolvency & Bankruptcy Code, 2016 (I&B Code) for initiation of the Fraudulent and malicious proceedings by the Corporate Debtor in connection with the main application i.e. C.P. (IB) No. 3176/NCLT/MB/C-IV/2019 to which the Financial Creditor filed its Reply on 14.02.2020.
The Applicant filed an Additional Affidavit dated 22.01.2020 wherein it produced the Current Account Statement of the Corporate Debtor to show the disbursement of loan amount of Rs.63,00,000/- (Rupees Sixty-Three lakh only) and the Corporate Debtor issued Cheque No.371724 for Rs.70,72,612 (Rupees Seventy Lakh Seventy Two Thousand Six Hundred and Twelve Only) at Pg.19 of Additional Affidavit referred above as Exhibit-1, for getting the Pay Order No.142703 for Rs.70,54,912/- (Rupees Seventy Lakh Fifty Four Thousand Nine Hundred and Twelve Only) in favour of the car dealer.
The Applicant filed present application on 23.08.2019. The Corporate Debtor filed its Affidavit in Reply dated 19.11.2019. The Corporate Debtor has denied all the averments put forth by the Financial Creditor in respect of the Loan Agreement as one of fabrication and malicious intent.
The Corporate Debtor also alleged that the present application is a conspiracy hatched by its Ex-Director, Mr. Sanjay Bhati and CEO & Promoter of the Financial Creditor, Mr. V.K. Sharma. It has further levied the charges that neither they availed loan nor the vehicles for which it is claimed to be granted i.e. 8 Mahindra Bolero Cars as they were never deployed by the Corporate Debtor. However, this is evident from the records that Financial Creditor has granted the Vehicle Loan to the Corporate Debtor, vehicles were duly purchased and the Registration Certificate(s) of the vehicles duly carries the hypothecation entry in favour of the Financial Creditor.
We have heard the parties at length and perused the records.
The Applicant has stated that Rs.62,73,407/- (Rupees Sixty Two Lakh Seventy Three Thousand Four Hundred Seven Only) along with the interest on the above said outstanding amount as on 31.07.2019 till payment and/or realisation.
It is observed from the documents mainly the Current Account Statement of the Corporate Debtor that there has been a disbursement of the aforementioned amount in favour of the Corporate Debtor and other documents produced on record also substantiate the claims of the Financial Creditor.
MA 206/2020 filed by the Corporate Debtor for initiation of fraudulent and malicious proceedings against the Financial Creditor is just to deviate from the main issue in hand.
On perusal of the documents submitted by the Applicant, it is clear that financial debt amounting to more than Rs.1,00,000/- (Rupees One Lakh Only) is due and payable by the Corporate Debtor to the Applicant. There is default by the Corporate Debtor in repayment of the loan amount.
The application is complete and has been filed under the proper form. The debt amount is more than Rupees One Lakh and default of the Corporate Debtor has been established and the application deserves to be admitted.
The Applicant has proposed the name of Mr. Anup Kumar, a registered insolvency resolution professional having Registration Number [IBBI/IPA-002/IP-N00333/2017-2018/10911] as Interim Resolution Professional, to carry out the functions as mentioned under I&B Code and has also given his declaration that no disciplinary proceedings are pending against him
ORDER
This Application filed under Section 7 of I&B Code, 2016, presented by Noble Co-operative Bank Limited, Financial Creditor/ Applicant against M/s. Independent TV Limited, Corporate Debtor for initiating corporate insolvency resolution process is admitted. Subsequently MA 206/2020 is dismissed. We further declare moratorium u/s 14 of I&B Code with consequential directions as mentioned below:
I. That this Bench as a result of this prohibits:
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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest 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.
II. That 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.
III. That the provisions of sub-section (1) of Section 14 of I&B Code shall not apply to
a. such transactions as may be notified by the Central Government in consultation with any financial sector regulator;
b. a surety in a contract of guarantee to a Corporate Debtor.
IV. That the order of moratorium shall have effect from the date of this order till the completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 of I&B Code or passes an order for the liquidation of the corporate debtor under section 33 of I&B Code, as the case may be.
V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of I&B Code.
VI. That this Bench appoints Mr. Anup Kumar, a registered Insolvency Resolution Professional having Registration Number IBBI/IPA-002/IP-N00333/2017-2018/10911 as Interim Resolution Professional to carry out the functions as mentioned under I&B Code, the fee payable to IRP/RP shall comply with the IBBI Regulations/Circulars/Directions issued in this regard. The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the IBC.
VII. 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.
VIII. The Financial Creditor shall deposit a sum of Rs.3,00,000/- (Rupees Three Lakh 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).
The Registry is directed to immediately communicate this Order to the Financial Creditor, the Corporate Debtor and the Interim Resolution Professional by Speed Post, email and WhatsApp immediately, and in any case, not later than two days from the date of this Order.
A copy of this Order be sent 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.