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Judgment
[Per: VIRENDRA KUMAR GUPTA, MEMBER (T)]
This application filed under Section 7 of Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as CODE). The amount of default has been claimed at Rs.2,79,89,48,123.65 as on 29.02.2020. The date of default has been stated as 01.02.2016.
Learned Counsel Ms. Aishwarya Reddy for the Financial Creditor appeared and submitted that in this application only issue which was required to be considered was whether the application has been filed within limitation or not as all other conditions i.e there being a debt of more than threshold limit for filing application under Section 7 of CODE and there is a default in repayment thereof, have been fulfilled. As far as aspect of limitation was concerned, the debt originally fell due for payment on the account being classified as NPA on 01.02.2016. Subsequently, the Corporate Debtor submitted a proposal for OTS on 31.03.2018 which was before the expiry of three years' period from the date of default, hence, the same extended the limitation period for filing this application in terms of provision of section 18 of Limitation Act, 1963.
It was also pleaded that the name of the IRP has been proposed whose consent was also on record, hence, such person can be appointed as IRP.
Learned Counsel for the Corporate Debtor contended that the mater could be decided on the basis of the facts of the case as well as considering the material on record.
We have considered the submissions made by both sides. It is noted that the account of the Corporate Debtor has been classified as NPA on 01.02.2016. From the perusal of the proceeding, which have taken place, it is noted that the Corporate Debtor sought adjournment on the ground of offer of OTS had been given to the bank which was under consideration. Such plea was made on 09.03.2021. Subsequently, this proposal has been rejected by the bank. Accordingly, this matter was taken up for hearing today.
This is a case where debt has been admitted not only through earlier proposal of OTS which had been given on 31.03.2018 but subsequently also. Even otherwise, it is nobody's case that the loan amount does not appear in the balance sheet of the Corporate Debtor which by itself is sufficient to extend the limitation period.
The application is otherwise complete and defect free. The name of IRP has also been proposed which is mandatory for an application filed under Section 7 of CODE and whose consent is on record. It is also noted that no material exists on record as regard to disciplinary proceedings, if any, being pending against such person. Accordingly, We appoint Mr. Parthiv Parikh, having Registration No. IBBI/IPA-002-IP-N00369/2017-2018/11063, Email: [email protected] as Interim Resolution Professional. Hence, we admit Corporate Debtor in CIRP and pass following order:
ORDER
Corporate Debtor M/s Archon Engicon Ltd. is admitted in Corporate Insolvency Resolution Process under Section 7 of Insolvency and Bankruptcy Code, 2016.
We appoint one Mr. Parthiv Parikh, having Registration No. IBBI/IPA-002-IP-N00369/2017-2018/11063, Email: [email protected] under Section 12(1)(c) of the IB Code as IRP.
That the Moratorium under Section 14 of the Code shall come to effect from 07.09.2021 till the completion of Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub- Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, as the case may be.
That the Bench hereby prohibits the institution of suits or continuation of pending suit 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(s), 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 SARFAESI Act, 2002 the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor.
Further, litigation or any application, if any, is pending before any competent Court of law under the provisions of the SARFAESI Act and RDB Act, prior to pronouncement of this order such proceedings are expected to be dealt with in accordance with law r.w. Section 14 and Section 238 of the Insolvency & Bankruptcy Code, 2016.
That the supply of essential goods or services to Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during the Moratorium, period. The Corporate Debtor to provide effective assistance to the IRP as and when he takes charge of the Corporate Debtor.
The IRP so appointed shall make Public announcement of Corporate Insolvency Resolution Process (CIRP) be made immediately as specified under Section 13 of the Code and by calling for submissions of claim under Section 15 of the Code.
The IRP shall perform all his functions as contemplated, inter alia, by Sections 17,18,20 & 21 of the Code. It is further made clear that all personnel connected with Corporate Debtor, its Promoter or any other person associated with management of the Corporate Debtor are under legal obligation under Section 19 of the Code extend every assistance and co-operation to the Interim Resolution Professional. Where any personnel of the Corporate Debtor, its Promoter or any other person required to assist or co-operate with IRP, do not assist or Co-operate, IRP is at liberty to make appropriate application to this Adjudicating Authority with a prayer for passing an appropriate order.
The IRP shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor Company' and manage the operations of the Corporate Debtor Company as a going concern as a part of obligation imposed by Section 20 of the Insolvency & Bankruptcy Code, 2016.
We direct the Financial Creditor / Applicant to pay the IRP a sum of Rs. 2,00,000/- (Rs. Two Lakh) as advance against fees & expenses till the COC decides about his fees / expenses.
The Registry is directed to communicate a copy of this order to the Petitioner-Financial Creditor, Corporate Debtor and to the Interim Resolution Professional and the concerned Registrar of Companies, after completion of necessary formalities, within three working days and upload the same on website immediately after pronouncement of the order.
The commencement of Corporate Insolvency Resolution Process (CIRP) shall be effective from the date of this order.
CP(IB) No. 211/7/NCLT/AHM/2020 is allowed and stands disposed of.