Opus Software Solutions Private Limited vs Krishna Kanhaiya Milk Processing Private Limited

[PER: CORAM]

This C.P. (IB) No.465/MB/2025 (Application) was filed on 28.02.2025 by Opus Software Solutions Private Limited, the Financial Creditor (FC), having CIN No.: U72200MH1997PTC107600 under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC), read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (IBC Rules), for initiating Corporate Insolvency Resolution Process (hereinafter referred to as “CIRP”) in respect of Krishna Kanhaiya Milk Processing Private Limited, the Corporate Debtor (CD) having CIN No.: U15400PN2014PTC150871.

This Application has been affirmed by one Mr. Ramesh Mengawade, Managing Director of the Applicant. As per Part IV of the Application, the amount claimed to be in default as on 25.10.2023 is Rs.3,94,60,195/- (Three Crore Ninety-Four Lakh Sixty-Thousand One-Hundred and Ninety-Five Rupees). The date of default as per Part IV is 25.10.2023.

The Applicant has proposed Mr. Kamal Agarwal, having Registration No. IBBI/IPA-001/IP-P00868/2017-18/11466, to act as the Interim Resolution Professional (IRP) in case the Application is admitted.

The Applicant is engaged in the information technology sector and provides a broad portfolio of products and services, including risk management services, IT solutions, banking services, and other aligned offerings. The CD is in the business of manufacturing dairy products.

The CD approached the Applicant seeking a loan of Rs.3,00,00,000/- by way of Inter-Corporate Deposit (ICD) for its business and working-capital requirements, capital expenditure, investments in share capital of group/associate companies or return of certain debts.

Pursuant thereto, the Applicant entered into an Inter-Corporate Loan Agreement dated 22.07.2020 (“ICD Agreement”) with the CD and disbursed an amount of Rs.3,00,00,000/- as an ICD (“Principal Amount”) on 28.07.2020.

In relation to the ICD Agreement, three separate Guarantee Agreements dated 22.07.2020 (“Guarantee Agreements”) were executed by Mr. Pravin Laxman Lokhande, Mr. Sharad Jagtap Sidram Shirke, and Mr. Rahul Kundalikar (collectively, “Guarantors”).

Clause 2 of the ICD Agreement stipulates that the loan is repayable within 6 months from the Disbursement Date (“Repayment Period”). Clause 5 provides that interest at the rate of 12% p.a. shall accrue on the Principal Amount. Accordingly, the Principal Amount, along with interest, became due for repayment on 28.01.2021.

On 28.01.2021, the total amount due and payable to the Applicant comprised of Rs.3,00,00,000/- towards principal and Rs.2,66,301/- towards interest.

The CD failed to make the payment despite repeated reminders and follow-ups by the Applicant.

In May 2021, the CD acknowledged its liability and default through various email communications.

On 12.02.2021, the CD made a partial payment of Rs.1,00,00,000/- towards the principal amount, which was remitted several months after the expiry of the Repayment Period. The remaining outstanding principal and interest remained unpaid, constituting a breach of the ICD Agreement.

By an email dated 18.08.2023, the CD admitted its liability and sought an extension of time to repay the outstanding amount by 30.09.2023.

In response, the Applicant, by its email dated 18.08.2023, agreed to the extension on the condition that the principal amount would be repaid along with applicable interest and delay penalty.

Prior to expiry of the extended period, the CD, by an email dated 29.09.2023, informed the Applicant that it was unable to make the payment as its bank was unable to disburse funds by 30.09.2023. The CD therefore sought a further extension until 25.10.2023. The Applicant, vide email dated 26.10.2023, sought an update regarding the status of the payment.

Subsequently, on 13.12.2023, the CD again requested time until 15.02.2024 to make payment.

Despite repeated follow-ups by the Applicant and repeated acknowledgements and assurances by the CD, no payment has been made after 12.02.2021.

Reminder letters dated 23.02.2024 were issued to the CD and the Guarantors, calling upon them to pay the overdue amounts.

Further, vide email dated 05.03.2024, the CD once again acknowledged its liability and assured repayment in due course.

The Applicant, through its authorised attorney, issued a Statutory Notice (“Demand Letter”) dated 15.11.2024 calling upon the CD to pay a sum of Rs.2,52,59,464/- towards the outstanding principal and penal interest.

Although the original due date for repayment was 28.01.2021, the repayment timeline was subsequently revised pursuant to the CD’s requests vide emails dated 18.08.2023 and 29.09.2023, wherein repayment was sought to be made by 25.10.2023. As the CD failed to make payment by 25.10.2023, the Date of Default stands as 25.10.2023.

The CD, through its emails dated 18.08.2023, 29.09.2023, 13.12.2023, and 05.03.2024, repeatedly acknowledged its liability under the ICD Agreement. Accordingly, in view of the judgment of the Hon’ble National Company Law Appellate Tribunal in Rakesh Kumar Jain v. ADTV Communications Pvt. Ltd., (Company Appeal (AT) Insolvency No. 756 of 2018), a fresh period of limitation commenced from 05.03.2024, being the date of the last acknowledgment.

Without prejudice to the above, the partial payment of Rs.1,00,00,000/-received on 12.02.2021, and the exclusion of the period 15.03.2020 to 28.02.2022 in terms of the Hon’ble Supreme Court’s order dated 10.01.2022 in In Re: Cognizance for Extension of Limitation (Misc. Application No. 21 of 2022), ensures that the present Petition is well within the prescribed period of limitation. Computation of the outstanding payable by the CD is as given below:

The Applicant has attached the following documents along with the Application, Additional Affidavit and Rejoinder:

This I.A. was filed by the Applicant in the present Application on 22.05.2025, seeking a modification of the recorded date of default from 28.01.2021 to 25.10.2023 and the change in the claim amount from Rs.3,78,61,644/- to Rs.3,94,60,195/-.

The Applicant sought to update the claim amount in Part IV of Form 1 of the present Application to reflect the recalculated dues up to the revised date of default. The revised claim amount of Rs.3,94,60,195/- includes:

This Tribunal, vide order dated 05.08.2025, allowed and disposed of the said I.A.

Notice was issued to the CD on 06.06.2025. Order dated 27.06.2025 mentions that the Applicant submitted Affidavit of Service dated 25.06.2025 recording service of the same via email on 13.06.2025 and via RPAD on 25.06.2025.

There has been no representation of the CD on any occasion despite receiving multiple notices from this Tribunal. The CD never appeared; hence, vide Order dated 14.10.2025, the CD was set ex-parte. There exists no application for the recall of this interim order.

A short synopsis was filed by the Applicant on 04.10.2025.

The Written Submissions are not being stated here afresh to avoid duplication and repetition.

This Additional Affidavit dated 14.11.2025 was filed by the Counsel for the Applicant to bring on record NeSL Form - D.

It records the date of default as 25.10.2023 and the status of authentication as “DEEMED TO BE AUTHENTICATED”.

We have perused the documents as placed before us and heard the Ld. Counsels for the Applicant.

The undisputed factual matrix reveals that the CD, engaged in the business of manufacturing dairy products, had availed an ICD to the extent of Rs.3,00,00,000/- from the Applicant pursuant to an ICD Agreement dated 22.07.2020. The loan consideration was duly disbursed on 28.07.2020, as evidenced by the bank records submitted along with this Application. The ICD Agreement stipulated a fixed repayment period of 6 months, with the outstanding principal and interest becoming due on 28.01.2021. The Guarantee Agreements executed by the 3 Guarantors further reinforce the contractual framework and lend support to the Applicant’s claim under Section 5(8)(i) of the IBC, which includes debts backed by guarantees within the definition of “Financial Debt.”

The present Application under Section 7 of the IBC is founded upon the Applicant’s assertion that the CD failed to repay the dues on 28.01.2021, and despite repeated reminders, follow-ups, and formal communications, no repayment (other than a single partial payment of Rs.1,00,00,000/- on 12.02.2021) was made thereafter. This constitutes a clear breach of the repayment obligation under the ICD Agreement. Importantly, the CD acknowledged its liability on multiple occasions, specifically vide emails dated May 2021, 18.08.2023, 29.09.2023, 13.12.2023, and 05.03.2024. Under Section 18 of the Limitation Act, 1963, such written acknowledgements duly extend the period of limitation, triggering a fresh period from each date of acknowledgement.

The Hon’ble NCLAT has affirmed this principle in Rakesh Kumar Jain (supra), wherein the Tribunal held that any written acknowledgement of debt before expiry of limitation results in a fresh period of limitation beginning from the date of such acknowledgement. The repeated and unequivocal acknowledgements by the CD therefore clearly preserve the maintainability of the present Application within the statutory period. Further, the partial payment of Rs.1,00,00,000/- on 12.02.2021 also constitutes an acknowledgement of liability under Section 19 of the Limitation Act, further extending the limitation period.

Moreover, the Hon’ble Supreme Court’s suo moto order in In Re: Cognizance for Extension of Limitation, Misc. Application No. 21 of 2022 has directed that the period from 15.03.2020 to 28.02.2022 shall stand excluded for the computation of limitation owing to the COVID-19 pandemic. When this exclusion period is applied in combination with the repeated acknowledgements of liability and partial payment, it becomes abundantly clear that the present Section 7 Application is well within the limitation.

The revised repayment timeline requested by the CD via emails dated 18.08.2023 and 29.09.2023, making 25.10.2023 the extended deadline, further establishes the CD’s admission of liability. Once the CD failed to honour its obligation on or before the extended repayment date, the ‘date of default’ stood crystallised as 25.10.2023, which is fully compliant with the definition of “default” under Section 3(12) of the IBC. The fact that the CD continued to admit the outstanding liability even thereafter, including on 05.03.2024, supports the unambiguous default.

The first default was on 28.01.2021, which is within 10A period. Thereafter, part-payments were made by the CD on 12.02.2021. The repayment timelines were revised at the request of CD to 25.10.2023.

The evidentiary record submitted by the Applicant (comprising of the ICD Agreement, Guarantee Agreements, bank statements reflecting disbursement and partial repayment, ledger entries, email acknowledgments, reminder notices, and the statutory demand notice dated 15.11.2024) demonstrates a complete and clear chain of documents meeting the requirements under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, as well as Form 1. The NeSL Form-D recording the default as “Deemed to be authenticated” further strengthens the statutory presumption of default under Section 7, consistent with the principles laid down in the Hon’ble Supreme Court in Innoventive Industries v. ICICI Bank [(2017) 8 SCR 33] wherein it was held that if debt and default are established, the Adjudicating Authority must admit the petition. Once these criteria are satisfied, admission of the petition becomes mandatory.

The present Application has been proceeded ex-parte as the CD failed to enter an appearance or contest the proceedings. The Applicant has placed on record sufficient documentary evidence to establish the existence of a financial debt and the occurrence of default on the part of the CD. In the absence of any rebuttal or contrary evidence, the claim of the Applicant remains uncontroverted.

In view of the above discussion, the Applicant has successfully demonstrated the existence of a financial debt, the occurrence of default, and the continuing nature of such default, all supported by clear documentary evidence and multiple admissions by the CD. The Application is complete in all respects, duly accompanied by the written consent of the proposed IRP as required under Section 7(3)(b) of the IBC. There remains no legal impediment to the admission of this Application under Section 7 of the IBC.

The Applicant has also proposed the name of an IRP, Mr. Kamal Agarwal, and as per the Form 2 attached along with the Application, no disciplinary proceedings are going on against him. The Applicant has provided his valid AFA in Form B valid till 31.12.2025. Further, this Application is complete as all the required documents have been attached along with the Application.

We make it clear that at this stage we have not crystallised the amount as claimed in this Application; the same is left to be collated by the IRP.

In view of the aforesaid findings, this Application bearing C.P. (IB) 465/MB/2025 filed under Section 7 of IBC, 2016, by Opus Software Solutions Private Limited, the Applicant (FC), for initiating CIRP in respect of Krishna Kanhaiya Milk Processing Private Limited, the CD, is admitted.

We further declare a moratorium under Section 14 of IBC, 2016 with consequential directions as mentioned below:

I. We prohibit:

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 order of moratorium shall have effect from the date of this order till the completion of the CIRP or until this Tribunal approves the resolution plan under Section 31(1) of the IBC or passes an order for the liquidation of the Corporate Debtor under Section 33 thereof, as the case may be.

IV. That the public announcement of the CIRP shall be made immediately as specified under Section 13 of the IBC read with Regulation 6 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and other Rules and Regulations made thereunder.

V. That this Bench hereby appoints Mr. Kamal Agarwal, having Registration No. as IBBI/IPA-001/IP-P00868/2017-18/11466, and e-mail address [email protected], having a valid Authorisation for Assignment up to 31.12.2025 as the IRP to carry out the functions under the IBC.

VI. That the fee payable to IRP/RP shall be in accordance with such Regulations/Circulars/ Directions as may be issued by the IBBI.

VII. That 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 or Section 25, as the case may be, of the IBC. The officers and managers of the Corporate Debtor are directed to provide all assistance to the IRP as and when he takes charge of the assets and management of the Corporate Debtor. Coercive steps will follow against them under the provisions of the IBC read with Rule 11 of the NCLT Rules for any violation of law.

VIII. That the IRP/IP shall submit to this Tribunal monthly reports with regard to the progress of the CIRP in respect of the Corporate Debtor.

IX. In exercise of the powers under Rule 11 of the NCLT Rules, 2016, the Financial Creditor is directed to deposit a sum of Rs.3,00,000/- (Three Lakh Rupees) with the IRP to meet the initial CIRP cost arising out of issuing public notice and inviting claims, etc. The amount so deposited shall be interim finance and paid back to the Financial Creditor on priority upon the funds becoming available with IRP/RP from the Committee of Creditors (CoC). The expenses incurred by IRP out of this fund are subject to approval by the CoC.

X. A copy of this Order be sent to the Registrar of Companies, Maharashtra, Mumbai for updating the Master Data of the Corporate Debtor.

XI. A copy of the Order shall also be forwarded to the IBBI for record and dissemination on their website.

XII. The IRP is directed to issue notice of admission upon all the statutory authorities of the Corporate Debtor without fail.

XIII. The Registry is directed to immediately communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by way of Speed Post, e-mail and WhatsApp.

XIV. Compliance report of the order by Designated Registrar is to be submitted today.