Shirijay Infra Pvt Ltd vs Trans Polyurethane Pvt Ltd

The case is fixed for pronouncement of order. The order is pronounced in the open court, vide separate sheet.

This petition is filed on 22.04.2022 by the Financial Creditor M/s. Shirijay Infra Private Limited (hereinafter referred to as “Applicant”) against the Corporate Debtor M/s. Trans Polyurethane Private Limited (hereinafter referred to as “Respondent”) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC, 2016”) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiation of Corporate Insolvency Resolution Process (CIRP) against the Respondent/Corporate Debtor, to appoint Interim Resolution Professional (hereinafter referred to as “IRP”) and declare the moratorium for having defaulted payment of its outstanding dues Rs.3,68,20,072/-. The date of default is stated to be 08.01.2022.

On perusal of Part-I of the Form-1 reveals that the Applicant/Financial Creditor is a private limited company incorporated on 24.12.2019 having CIN No.U45202MH2019PTC334923. The registered office of the Applicant is situated at Unit No. C-109, Hind Saurashtra Industrial Estate, Andheri East, Mumbai-400059.

On perusal of Part-II of the Form-1 reveals the Respondent/Corporate Debtor is a private limited company incorporated on 01.08.1996 having CIN No.U24132DD1996PTC002145. The registered office of the Company is situated at 23, Bharat Industrial Estate, Bhimpore Daman, DD-396210, India.

Part-III of the Form-1 reveals that the Applicant has proposed the name of the Interim Resolution Professional (‘IRP’) Mr. Dhanshyam Patel, having registration No. IBBI/IPA-001/IPP01373/2018-2019/12155, Address: 322, Zest Business Spaces, M.G. Road, Ghatkopar (East), Mumbai-400077. There is a declaration made by him that there are no disciplinary proceedings pending against him with the Board or in Indian Institute of Insolvency Professionals of ICAI. In addition, further necessary disclosures have been made by him as per the requirement of the IBBI Regulations.

Part-IV of the Form-1 reveals that total dues as claimed by the Applicant is Rs.3,68,20,072/- (Three Crores Sixty Eight Lakhs Twenty Thousand and Seventy Two only.). The date of default is stated to be 08.01.2022.

The averments made by the Applicant in its application are summarized hereunder:-

On issuance of notice, no one appeared on behalf of the Respondent therefore, this Adjudicating Authority Vide order dated 16.11.2022 passed an ex-parte order against the Respondent.

It was observed that the Applicant is the one to whom the loan was claimed to be assigned by the alleged original lender. However, the details with regards to loan disbursed to the Respondent by the alleged original lender are not provided. This Adjudicating Authority was of the view that there has to be a justification with regards to whether the loan was not time-barred before the debt was assigned to the present Applicant. Therefore, vide order dated 08.05.2023 the Applicant was directed to provide relevant documents through affidavit.

In Compliance of order dated 08.05.2023, the Applicant filed an affidavit dated 03.07.2023 before this Tribunal on 05.07.2023 vide diary no. D2448 to place on record below mentioned documents:

The Applicant on 02.08.2023 sought further time to file relevant documents and filed an affidavit dated 17.08.2023 before this Tribunal on 23.08.2023 vide diary no. D3140 to place on record below mentioned documents:

During the hearing held on 13.09.2023, the Ld. Counsel for the Applicant was not able to convince this Adjudicating Authority on disbursement of loan amount to the Respondent as no bank statement of alleged original lender was annexed. Further, no record of Information utility (NeSL Certificate) was filed qua the debt and default in terms of Regulation 20(1A) of IBBI (Information Utilities) Regulations, 2017. Therefore, Applicant was directed to file proof of payment of consideration to assignor as well as copy of NeSL Certificate in the shape of Form-D being record of default in terms of Regulation 20(1A).

The Applicant in compliance of order dated 13.09.2023, has filed an affidavit dated 10.10.2023 before this tribunal on 12.10.2023 vide diary no. D3992 and placed on record following documents:-i. Form C ii. Ledger account of Satec Envir Engineering Pvt. Ltd. (Alleged original lender) in the books of Shirijay Infra Private Limited.(Applicant). iii. Letter dated 26.09.2023 of ICICI Bank addressed to Applicant certifying that payments are made by Applicant on behalf of M/s. Satec Envir Engineering (India) Pvt. Ltd. (Alleged original lender).

We have heard the Ld. Counsel for the Applicant and perused the documents available on record.

It is claimed that the alleged original lender had provided financial assistance amounting to Rs.3,68,20,072/- to the Respondent which the Respondent failed to repay. Thereafter, the alleged original lender was in need of funds and hence, assigned the said debt to the Applicant who then demanded the outstanding amount from the Respondent. The Respondent has failed to make the payment. Hence, the present application seeking initiation of CIRP.

The amount claimed to be in default is Rs.3,68,20,072/-which is above the threshold limit. Further, the Respondent has acknowledged the debt vide letter dated 13.04.2021. However, in order to establish ‘debt’ and ‘default’ it is necessary to see whether the amount was disbursed to the Respondent.

The letter dated 23.06.2023 addressed by alleged original lender to Applicant provides clarification with regards to amount of Rs.3,68,20,072/- outstanding from the Respondent. On perusal of said letter it is observed as follows:

At page no. 10 and 11 of the application a table appears wherein details of payment amounting to Rs.8,53,297/-made by alleged original lender on behalf of Respondent are provided. The said payments were made by alleged original lender for the various services. However, no proof such as invoices or bills are annexed to show that services were availed nor the figures appearing in the table are reflected in the bank statement annexed at page no. 12 to 20. Further, no document is placed on record which suggests that an amount of Rs. 3,59,66,775/- was actually disbursed to the Respondent.

Despite directions the Applicant has failed to place on record document to suggest that the amount was actually disbursed to the Respondent. Hence, the Applicant has failed to establish that the amount was disbursed to the Respondent. Therefore, the question of default on the part of the Respondent does not arise. Reliance is placed on Judgment of the Hon’ble National Company Law Appellate Tribunal in Dr. B.V.S Laxmi Vs. Geometrix Laser Solution Private Limited [2018] 142CLA321:

Further, the debt in question was assigned by alleged original lender to the Applicant through deed of assignment. The deed of assignment annexed with the application is undated and the same is notarised by one Mr. Udai Prakash. Later on, the Applicant filed an affidavit dated 17.08.2023 stating that the deed of assignment annexed to the application is the office copy of the Applicant and the improved copy of deed of assignment dated 15.05.2021 wherein the date is hand-written and is notarized by Mr. S. Syed Amanulla was annexed to the affidavit. Such discrepancies in the deed of assignment placed on record by the Applicant cast serious doubt on the genuineness of deed of assignment. Hence, we do not find the said document to be reliable.

In view of the above, the C.P. No. 113 of 2022 filed by the Applicant for initiating Corporate Insolvency Resolution process against the Respondent is rejected and dismissed.