Punjab National Bank vs Sonapur Herbal Centre Pvt. Ltd.

[Per: Mr. Prasanta Kumar Mohanty, Member (T)]

The present I. B. Petition [CP (IB) No.39/GB/2019] is filed by the FC Punjab National Bank under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a “Code”), seeking initiation of Corporate Insolvency Resolution Process (“CIRP”) against the Corporate Debtor namely, Sonapur Herbal Centre Pvt. Ltd., for the default committed by the Corporate Debtor in making repayment of advance availed from the Petitioner/FC.

The Petitioner is a Body Corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, having one of its Branches known as Mahabir Market Branch [with PAN No.AAACP0165G], SRCB Road, Fancy Bazar, Guwahati – 781001, Assam, Phone 0361 – 2540487, Email [email protected].

The Respondent Corporate Debtor (CD) Company, namely Sonapur Herbal Centre Pvt. Ltd., is a Private Limited Company incorporated on 31.06.2000 with CIN No.U85191ML2000PTC006265 having its Registered Office situated at Them Market, Khanapara, District- Ri Bhoi, Meghalaya- 793001, Ph.9957577741, Email Id. [email protected] and having Nominal / Authorised Share Capital of Rs.5,00,00,000.00 (Rupees Five crores) only and paid-up Share Capital of the Respondent (CD) Company is Rs.4,29,00,000.00 (Rupees Four crores Twenty Nine Lacs) only.

The Petitioner has also proposed Shri Yogesh Gupta [C/o. M/s. S. Jaykishan, Chartered Accountants] Suite No.2D and 2E, 12 Ho-Chi-Minh Sarani, Kolkata- 700071, Ph- (033) 4003-5801, having IP Registration NO.IBBI/IPA-001/IP-P00349/2017-18/10650, Email [email protected] to be appointed as IRP.

It is stated that total amount of Debt granted to the CD Company was Rs.18,29,84,000.00 (Rupees Eighteen crores Twenty Nine lacs Eighty Four thousand) only being the sum total of Rs.16,00,00,000.000 (TL) and Rs.2,29,84,000.00 (FITL). The details of disbursement of the Term Loan and FITL component upon restructuring are as under:

It is stated that the total amount in default in the Term Loan account [A/c No.321300IC00000043] including uncharged interest calculated up to 31.10.2019 stands at Rs.18,46,31,206.70 (Rupees Eighteen crores Forty Six lacs Thirty One thousand Two hundred Six and paise Seventy) only as on 31.10.2019. The dates of default in the Term Loan Account, therefore, occurred on 31.05.2016 and 30.09.2016. Total defaulted amount in the Funded Interest Term Loan (FITL) account [A/c No.321300IC00000113] including uncharged interest stands at Rs.3,35,91,363.91 (Rupees Three crores Thirty Five lacs Ninety One thousand Three hundred Sixty Three and paise Ninety One) only as on 31.10.2019. The dates of default in the FITL Account, therefore, occurred on 30.04.2016, 31.05.2016 and 30.09.2016. Therefore, the total defaulted amount in the Term Loan (TL) and in the Funded Interest Term Loan (FITL) comes to Rs.18,46,31,206.70 + Rs.,35,91,363.91 = Rs.21,82,22,569.91 (Rupees Twenty One crores Eighty Two lacs Twenty Two thousand Five hundred Sixty Nine and paise Ninety One) only. The loan accounts became Non-Performing Asset (NPA) on 30.09.2016 and are still continuing as NPA accounts.

Statements of Accounts along with Interest Calculation, Capitalized Penal Interest Calculation Sheets and Certificates in accordance with the Bankers Book of Evidence AC, 1891 (18 of 1891) has been filed with the Petition marked as ANNEXURES I-A, I-B, I-C, I-D, I-F, I-I and I-J.

It is stated that the Financial Creditor has sanctioned a Term Loan limit of Rs.16,00,00,000.00 crores (Rupees Sixteen crores) only and subsequently a Funded Interest Term Loan (FITL) of Rs.2,29,84,000.00 (Rupees Two crores Twenty Nine lacs Eighty Four thousand) only aggregating to Rs.18,29,84,000.00 (Rupees Eighteen crores Twenty Nine lacs Eighty Four thousand) only in favour of the Corporate Debtor.

It is stated that the Punjab National Bank as the Financial Creditor had sought to lodge this application under the Code of 2016 with respect to its finance in the form of Term Loan Limit of Rs.16,00,00,000.00 crores (Rupees Sixteen crores) only and subsequently a Funded Interest Term Loan (FITL) of Rs.2,29,84,000.00 (Rupees Two crores Twenty Nine lacs Eighty Four thousand) only respectively aggregating to Rs.18,29,84,000.00 (Rupees Eighteen crores Twenty Nine lacs Eighty Four thousand) only and the said loans were secured by way of the following:-

It is submitted that the Corporate Debtor which had created equitable mortgage of its aforementioned properties by deposit o title deeds in favour of the Financial Creditor and also confirmed the same by signing and executing Confirmation Letters dated 15.05.2008, 29.06.2010, 29.06.2010, 17.05.2011 and 23.01.2015 (Annexures I-Z, I-AA, I-AD, I-AG and I-AM).

The Personal Guarantors have executed security documents including Deed of Guarantee dated 29.06.2010, Agreement of Guarantee dated 12.01.2015 and Supplementary Agreement of Guarantee dated 12.01.2015 (Annexures I-X, I-AJ and I-AK). The estimated value of the hypothecated and mortgaged properties standing in the name of the Corporate Debtor as per Valuation Report dated 12.12.2018 prepared by the registered and empanelled valuer Sri Nripen Chandra Das, is Rs.19,08,15,000.00 (Rupees Nineteen crores Eight lacs Fifteen thousand) only (Annexure I-AZ).

The Certificate of Registration of Charge along with list of index of registered charges crated by the Corporate Debtor in favour of the Financial Creditor as available on the website www.mca.gov.in (Annexure I-K).

It is stated that the Financial Creditor as an Applicant had filed an Original Application bearing O.A. NO.336/2017 before the Debts Recovery Tribunal at Guwahati against the Corporate Debtor and the Personal Guarantors as Defendants for recovery of Rs.16,00,70,323.36 (Rupees Sixteen crores Seventy thousand Three hundred Twenty Three and paise Thirty Six) only and the said application is pending for disposal. Further, the Corporate Debtor had also filed a Title Suit being TS No.01/2017 before the Civil Judge No.2 Kamrup, Metro, Guwahati challenging the Section 13(2) notice issued by the Financial Creditor Bank under SARFAESI Act, 2002 and the said case is pending disposal before the learned Civil Court. The learned Civil Court was pleased to dismiss the Petition [Mic. (J) Case No.01/2017] for granting Ad-Interim and permanent injunction vide Order dated 18.05.2017 and the Corporate Debtor as Appellant preferred an Appeal before the Hon’ble Gauhati High Court (FAO No.33/2017) and the said Appeal is pending before the Hon’ble Gauhati High Court and the Hon’ble Gauhati High Court had directed the Corporate Debtor not to take any coercive step under the SARFAESI Act, 2002.

It is further stated that Record of Default with the Information Utility, CRILIC (Central Repository Information on large Credits) Report as on 30.09.2019 dated 15.11.2019 is annexed with the Petition marked as ANNEXURE (I-AN).

It is stated that the latest and complete copy of the Financial Contract reflecting all amendments and waivers to date are as given hereunder:-

The Petitioner / Financial Creditor, in order to prove the existence of financial debt, amount due and date of default, has attached the following documents with the Petition:-

It is submitted that the Petition has been filed by the Financial Creditor exclusively for resolution of the outstanding dues/debts in the Term Loan and FITL accounts sanctioned by it. The Financial Creditor has exclusive charge over the hypothecated and mortgage properties and the Petition is well within the period of limitation under Article 137 of the Limitations Act for filing the present application under Section 7 of the IBC, 2016.

It is also submitted that the interest being accumulating over the defaulted amount till date, the default on behalf of the Corporate Debtor is of continuous nature and hence still in force.

The Petitioner /Financial Creditor has prayed for the following relief/s:

When the matter came up on 10.02.2021, it was informed during the proceedings, by the learned Counsels for the Petitioner/FC and the Respondents/CD that the Hon’ble Gauhati High Court has passed certain Orders in the Writ Petition filed by the CD before the Hon’ble Gauhati High Court accordingly, the matter was adjourned on that day with a direction to the learned Counsels of both the Financial Creditor and the Corporate Debtor to submit the copy of the Judgement passed by the Hon’ble High Court in the aforesaid Writ Petition. The relevant part of the Order of this Bench dated 10.02.2021 is reproduced hereunder for clarity:-

However, an order was passed in the aforesaid Writ Petition (C) by the Hon’ble High Court on 17.03.2021 and the copy of the same has been filed by the learned Counsel for the Financial Creditor. The relevant part of the Order of the Hon’ble High Court is reproduced hereunder for reference:-

Subsequently, when the matter came up before this Bench on 24.03.2021, during the proceedings, the learned Counsel for the Financial Creditor has submitted that Rs.5.00 crores (Rupees Five crores) only has been deposited by the Respondent /CD with the FC Punjab National Bank as per the Order of the Hon’ble High Court and he prayed for some time to discuss the matter with the FC for further course of action. The matter was adjourned on that day as requested for by posting the same on 03.05.2021. The Order passed by this Bench on 24.03.2021 is reproduced hereunder:

This Bench had taken up the matter on 03.05.2021, 10.08.2021 and 26.08.2021 and passed the following orders:

The CD M/s. Sonapur Herbal Centre Pvt. Ltd. has filed Affidavit on 07.09.2021 wherein it is stated that-

It is now ovserved from the records / documents / Affidavits made available and the arguments advanced by the Counsels of both the parties that:-

We consider nothing survives in this Petition and hence the matter is disposed of as the amount claimed by the Financial Creditor has been fully paid by the Corporate Debtor.

The Applicant FC is hereby directed to hand over the documents, all securities etc. obtained for this advance to the Respondent / CD within 10 (Ten) working days from today and file a compliance report within 5(Five) days thereafter with the Registry.

Hence this Application filed under Section 7 of IBC is disposed of as nothing survives when the entire amount claimed by the Applicant / Financial Creditor has been fully paid by the Corporate Debtor.