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Judgment
ORDER
The captioned petition has been preferred under Section 7 of IBC, 2016, seeking initiation of CIRP qua the Corporate Debtor viz. Mona Portfolio Limited. It is the case of the Petitioner that it is a company incorporated under the Companies Act, 2013 and is engaged in the business of finance. The Corporate Debtor is also in the same business and had accepted an Inter Corporate Deposit from Grainland Agrotech Private Limited. Subsequently, an agreement was entered into between M/s Grainland and the Financial Creditor whereby M/s Grainland assigned the debt to Financial Creditor. The loan amount which was assigned to the Financial Creditor by virtue of the Deed of Assignment of Debt amounted to Rs.65,93,91,000/-. The amount of debt defaulted to be paid and the dates of default are mentioned in Part IV of the application. The relevant excerpt of the Part reads thus: -
The deed of assignment has been placed on record as Annexure A-7 to the petition. The relevant excerpt of the deed reads thus: -
The particulars of the IP proposed to be appointed as RP are given in Part III of the application which reads thus: -
However, no consent of IP (ibid) has been placed on record.
It is seen from Section 7(3) of IBC, 2016, the Financial Creditor shall along with the application furnish record of the default recorded with the information utility or such other record or evidence of default as may be specified; the name of the resolution professional proposed to act as an interim resolution professional; and any other information as may be specified by the Board. The said provision reads thus: -
“7. Initiation of corporate insolvency resolution process by financial creditor.—
[…]
(3)The financial creditor shall, along with the application furnish—
(a)record of the default recorded with the information utility or such other record or evidence of default as may be specified;
(b)the name of the resolution professional proposed to act as an interim resolution professional; and
(c)any other information as may be specified by the Board.”
In terms of the provisions of Section 7(5) of the Code, where this Adjudicating Authority is satisfied that a default has occurred and the application under sub-section (2) is complete and there is no disciplinary proceeding pending against the proposed resolution professional, it may, by order, admit such application preferred under Section 7(1) of the Code.
Indubitably, from the deed of assignment, it is clear that the amount of debt payable by the Corporate Debtor to M/s Grainland was assigned to the Petitioner before us. Since on demand of the amount of debt by the Petitioner in terms of the letter dated 23.05.2024, the amount of debt was not repaid by the date specified in the notice i.e. within three days of receipt of the notice and the Corporate Debtor did not dispute the liability, the default occurred on expiry of three days from 23.05.2024.
It is seen that the written communication by proposed IRP in terms of Form 2 under sub-rule (1) of Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been placed on record. As can be seen from clauses (vi) & (vii) of the Form, the IP has declared that there are no disciplinary proceedings pending against him. The clauses read thus: -
“vi.certify that there are no disciplinary proceedings pending against me with the Board or IIIP (ICAI);
vii.affirm that I am eligible to be appointed as an interim resolution professional in respect of the corporate debtor in accordance with the provisions of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016;”
To show the liability of the Corporate Debtor to repay the amount of debt to M/s Grainland Agrotech Private Limited, the Ld. Counsel for the Financial Creditor could draw our attention to “Confirmation of Accounts” by M/s Grainland Agrotech Private Limited, placed on record from page 33 to 45 of the petition.
From the aforementioned, it is clear that the requirement of the provisions of Section 7 (3) & (5) of the Code r/w Regulation 2A of IBBI (CIRP) Regulations 2016 are met.
On service of notice, appearance on behalf of Corporate Debtor has been made and a reply has also been filed. As can be seen from para 8 to 12, of the reply, the Corporate Debtor has accepted the liability to pay the amount of debt to the Petitioner as also the default committed by it in repayments of the same. The paras read thus: -
“8.That the Respondent/Corporate-Debtor entered into and Agreement dated 18.09.2019 (hereinafter referred as ‘ICD Agreement’) with M/s Grainland Agrotech Private Limited (a company established under the provisions of Companies Act) vide which the Respondent/Corporate-Debtor has accepted the Inter Corporate Deposits from M/s Grainland Agrotech Private Limited.”
“9.That as per the terms of ICD Agreement dated 18.09.2019, a total unsecured loan of Rs. 100 Crores was to be extended by M/s Grainland Agrotech Private Limited to the Respondent/Corporate-Debtor herein. It is submitted that the loan amount was extended by the M/s Grainland Agrotech Private Limited to the Mona Portfolio in several trenches from time to time. It is pertinent to mention that the Respondent/Corporate Debtor has repaid the huge sum (in several trenches) towards the part payment of the loan amount extended by the M/s Grainland Agrotech Private Limited.”
“10.That the Respondent/Corporate-Debtor has always been committed to the terms of ICD Agreement dated 18.09.2019, and in pursuance of that has already paid huge sums of money towards the payment of loan amount as well as interest amount. It is submitted that Respondent/Corporate-Debtor is still committed to fulfil its obligation as per the terms of the ICD Agreement dated 18.09.2019 and willing to pay the remaining sum towards the loan amount. It is submitted that only the payment of Rs. 65,93,91,000 (Sixty-Five Crores Ninety-Three Lakhs Ninety-One Thousand only) is remaining to be paid by the Respondent/Corporate Debtor towards the full and final closure of the Loan extended to the Respondent/Corporate Debtor vide ICD Agreement Dated 18.09.2019, and rest of the amount has already been paid.”
“11.It is hereby submitted that Respondent/Corporate-Debtor is determined to make the remaining payment of Rs. 65,93,91,000/-. It is just the financial constrains faced by the Respondent/Corporate-Debtor for last few years, primarily due to the hardship faced by the Respondent/Corporate-Debtor due to the unprecedented abysmal impact of the covid-19 Pandemic in the business of Respondent/Corporate-Debtor, the remaining amount could not be paid on time. It is hereby submitted that the Respondent/Corporate-Debtor is willing to make the payment of remaining loan amount and do the same in near future.”
“12.That on 15.04.2023 the Applicant intimated the Respondent/Corporate-Debtor about the Debt Assignment Agreement dated 31.01.2023 entered upon between Applicant and M/s Grainland Agrotech Private Limited vide which the Latter assigned the debt of Rs. 65,83,91,000/- to the former. It is submitted that the vide letter dated 20.04.2023, the Respondent/Corporate-Debtor acknowledged the Debt Assignment and updated its books accordingly.”
In view of the aforementioned, we are left with no option but to admit the captioned petition. Ordered accordingly.
In the wake, moratorium provided under Section 14 of IBC, 2016 is declared qua the CD and as a necessary consequence thereof the following prohibitions are imposed, which must be followed by all and sundry:
The institution of suits or continuation of pending suits or proceedings against the Respondent 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 Respondent 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 Respondent 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 the possession of the Respondent.
As proposed by the Petitioner, Mr. Mahesh Agarwal, having Registration IBBI/IPA-001/IP-P-P-01995/2020-2021/13087 is appointed as IRP, subject to the condition that no disciplinary proceeding is pending against him and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order.
It is further ordered that Mr. Mahesh Agarwal shall take charge of the CIRP of the Corporate Debtor with immediate effect and would take steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016 read with extend provisions of IBBI (Insolvency Resolution of Corporate Persons) Regulations, 2016.
The Petitioner is directed to deposit Rs. 2,00,000/- only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor.
A copy of this Order shall immediately be communicated by the Registry/Court Officer of this Tribunal to the Petitioner /Financial Creditor, the Respondent/Corporate Debtor and the IRP mentioned above.
In addition, a copy of this Order shall also be forwarded by the Registry/Court Officer of this Tribunal to the IBBI for their records.