State Bank Of India vs Ms. Phalguni Tiwary

Per: Rohit Kapoor, Member (Judicial)

The Court convened through physically/video conference.

Under consideration is an Application C.P.(IB)/118(KB)2022 filed by the Applicant under section 95(1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC, 2016”) read with rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 (hereinafter referred to as “IB Rules, 2019”) and regulation 4(2) of the IBBI (Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Regulations, 2019 (hereinafter referred to as “IB Regulations, 2019”) for initiating the Insolvency Resolution Process (hereinafter referred to as “IR Process”) against Smt. Phalguni Tewari, Personal Guarantor for United Chloro Paraffins Limited (CIN: U24119WB2003PTC096643) (hereinafter referred to as “UCPL”).

The factual matrix of the case is that the Applicant is a statutory body corporate constituted under the State Bank of India Act, 1955, having its Office at State Bank of India, Stressed Asset Management Branch II, Jeevandeep Building (1^st Floor), 1, Middleton Street, Kolkata 700071

“UCIL” Corporate Applicant (Corporate Debtor) had availed various credit facilities from the Applicant Bank. The said Corporate Applicant (Corporate Debtor) had failed to maintain financial discipline and defaulted in repayment of the said credit facilities. Therefore, the loan account of the said Corporate Applicant (Corporate Debtor) had to be classified as a non-performing asset (“NPA”) as on 18/12/2017. The applicant Bank took steps for recovery of its dues by instituting O.A.No. 327 of 2018 before the Debts Recovery Tribunal- I, Kolkata, which is pending before the DRT-I.

During the pendency of the O.A., “UCIL”, the Corporate Applicant (Corporate Debtor) had approached this Adjudicating Authority by way of an application, filed u/s. 10 of the IBC, 2016, being CP(IB)/898(KB)2018, which was admitted under CIRP vide order dated 12/10/2018. As no viable resolution plan was received, vide order dated 19/07/2019, “UCIL”, the Corporate Applicant (Corporate Debtor) was ordered to be liquidated.

The personal guarantor, viz., Mrs. Phalguni Tewary, had executed personal guarantee^{11.Annexure “C” at pages 163 to 168 of the petition} dated 28/10/2015 in favour of the Applicant to secure the repayment of the principal amount of the Credit Facilities together with all interest, additional interest, liquidated damages, premium on repayments, reimbursement of all costs, charges and expenses and all other obligations payable by “UCPL” in respect of the Facility Agreements. The applicant Bank thereafter issued demand notice^{22.Annexure “L” at pages 217 to 219A of the petition} dated 23/05/2018, through its Advocate, Sri Anjan Kumar Paul, recalling the advance, and invoking the guarantee. The Applicant Bank had issued a Demand Notice in Form B^{33.Annexure “O”at pages 233 to 235 of the petition} on 19/07/2021 under Rule 7(1) of the IB Rules, 2019 demanding Rs.36,19,25,660.35 along with unapplied interest, other charges and costs till repayment in full. Smt. Phalguni Tewary had replied to the said demand notice dated 19/07/2021 by her letter^{44.Annexure “P” at pages 236 to 242 of the petition} dated 28/07/2021.

In this factual conspectus, the applicant prays for initiation of insolvency resolution process, against the respondent/personal guarantor.

It is made known to everyone that on filing this Application by the Applicant/Creditor the interim-moratorium commences in terms of section 96(1)(a) of IBC, 2016.

The Applicant/Creditor has proposed name of Mr. Pratim Bayal, an Insolvency Professional, having Registration No. IBBI/IPA-003/IP-N00213/2018-2019/12385, of 18/1, Tarapukur Main Road, Ghosh Para, Agarpara, Kolkata 700109, West Bengal, e-mail address: [email protected], for appointment as Resolution Professional. Mr. Pratim Bayal has given his written consent^{55.Annexure “R” at pages 249 of the petition} in Form- ‘A’. Therefore, we are appointing Mr. Pratim Bayal as Resolution Professional in exercise of the power conferred under section 97 of the IBC, 2016 on this Authority subject, however, to his possessing a valid Authorisation for Assignment (AFA) issued by the Insolvency Professional Agency (IPA) of which he is a professional member, in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2019. The Resolution Professional is directed to file declaration within seven days from the date of receiving this Order to the effect that he fulfils all the requirements for being appointed as Resolution Professional in the matter.

The Resolution Professional shall exercise all the powers as enumerated under section 99 of the IBC, 2016 read with the Rules made thereunder. He is directed to make the recommendations for acceptance or rejection of this Application within the stipulated time as envisaged under section 99(1) of the IBC, 2016. The RP shall give a copy of the report under sub-section (7) of section 99 of IBC, 2016 to the Applicant, as soon as the same is filed before this Adjudicating Authority.

The Counsel on record for the Applicant is hereby directed to serve the copy of this Order along with copy of the Application and documents on the Resolution Professional by all available modes for information and compliance. Proof of service shall be filed with this Bench for record.

List this matter on 01/08/2022 for further consideration.

The Registry is hereby directed to send e-mail copies of the order forthwith to all the parties and their Ld. Counsel for information and for taking necessary steps.

Certified Copy of this order be issued, if applied for, upon compliance of all requisite formalities.