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Indian Bank v. GUWAHATI CONSTRUCTION
Structured Summary of the Opinion: NCLT, Guwahati Bench — CP (IB) No. 21/GB/2021
Factual and Procedural Background
This petition was filed by the Financial Creditor, Indian Bank, under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, seeking initiation of the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, M/s. Guwahati Construction Private Limited.
The Financial Creditor states that it had sanctioned a Term Loan facility (initially Rs. 400 lakhs, later Rs. 390 lakhs) to the Corporate Debtor for the development of "Tagore Apartment" and that the account became a Non-Performing Asset (NPA) (dates of NPA classification noted as 26.08.2017 and later as NPA on 27.12.2018). The total defaulted amount claimed by the Petitioner is Rs. 3,41,41,590.00 as on 23.06.2021.
The petition includes details of the credit facility, security (multiple equitable mortgages, hypothecation of construction materials, and guarantees by directors), a list of documentary annexures, record of default (including CIBIL report), and a pending recovery application (O.A. No. 209 of 2019) before the Debts Recovery Tribunal, Guwahati.
Procedurally, the Corporate Debtor did not appear despite attempts at service; notices returned with "Addressee left" and consequently the Tribunal directed publication of notice in two newspapers. The matter proceeded ex parte against the Corporate Debtor. After hearing the Petitioner and perusing the record, the Adjudicating Authority reserved and then pronounced an order on 24.03.2022 admitting the petition.
Legal Issues Presented
- Whether the Petitioner (Indian Bank) established that the Corporate Debtor availed the loan/credit facilities from the Financial Creditor (existence of debt).
- Whether the amount of debt exceeded the statutory threshold of one crore rupees.
- Whether the debt was due, payable and in default.
- Whether the Section 7 application was filed within the limitation period (i.e., whether the application complied with limitation requirements given the date of default).
- Whether the application filed by the Financial Creditor was complete for the purpose of initiation of CIRP and whether the Corporate Debtor was given adequate notice (service/notice issues).
Arguments of the Parties
Petitioner's (Financial Creditor) Submissions
- The Petitioner submitted that it sanctioned a Term Loan facility to M/s. Guwahati Construction Pvt. Ltd. (initially Rs. 400 lakhs, later Rs. 390 lakhs) for a specified project and that the loan account became an NPA (noting specific dates of classification as NPA).
- The Petitioner provided particulars of default and claimed a total defaulted amount of Rs. 3,41,41,590.00 as on 23.06.2021.
- The Petitioner placed on record extensive documentary material to prove existence of debt, security and default (numerous annexures listed in the petition, including loan agreements, hypothecation and mortgage documents, valuation reports, CIBIL report, bankers' book entries, notices under the SARFAESI Act, acknowledgements of liability, and other title and charge documents).
- The Petitioner informed the Tribunal that attempts to serve the Corporate Debtor had failed (returned mail with remark "Addressee left") and therefore sought admission; the Petitioner also complied with the Tribunal's direction to publish notice in two newspapers.
- The Petitioner proposed the name of Mr. Purshotam Gaggar (P. Gaggar & Associates) as Interim Resolution Professional and furnished the relevant IP registration number.
Respondent's (Corporate Debtor) Position
The Corporate Debtor did not appear in the proceedings; therefore, no detailed defence arguments by the Corporate Debtor are recorded in the opinion.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Adjudicating Authority recorded that it heard the counsel for the Applicant and perused the records and documents filed with the petition. The Tribunal expressly stated that, considering the materials made available and the arguments of the counsel, it was satisfied on certain key factual and statutory points. These findings—enumerated in the order—form the core of the Tribunal's reasoning and are reproduced here as the court relied upon them to admit the petition:
- 13.1: The Corporate Debtor availed the loan/credit facilities from the Financial Creditor (existence of the lending relationship as evidenced by agreements and related documents).
- 13.2: The existence of debt exceeded one crore rupees (statutory threshold relevant for Section 7 petitions).
- 13.3: The debt was due, payable and defaulted; the Petitioner filed Credit Information reports from TransUnion CIBIL and bankers' book entries among other documents to evidence default.
- 13.4: The application was filed within the limitation period—the Tribunal noted the date of default as 27.12.2018 and the filing date of the Section 7 petition as 23.09.2021; further acknowledgements of liability were recorded on specified earlier dates (22.03.2016; 24.01.2017; 04.12.2018).
- 13.5: A copy of the application had been sent to the Corporate Debtor and, though returned, notice had been published in two newspapers as directed; on that basis the Tribunal found the application complete for initiation of CIRP.
On the basis of these findings, the Tribunal concluded that the statutory requirements for admitting a petition under Section 7 were satisfied. The Tribunal then applied sections 13 and 14 of the Insolvency and Bankruptcy Code by declaring a moratorium, and applied the framework of the Code to appoint an Interim Resolution Professional (IRP) and to direct steps to be taken in the CIRP consistent with the Code's provisions. The Tribunal further directed the IRP to make the public announcement and to perform duties and adhere to statutory timelines and duties under the Code (mentioning Sections 15/17/18/19/20/21 as applicable to the IRP’s functions).
The Tribunal also recorded the claimed amount (Rs. 3,41,41,590.00) and made ancillary directions including communication of the authenticated order to relevant parties and the Registrar of Companies.
Holding and Implications
Core Holding: The Tribunal admitted the petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 on 24.03.2022. For emphasis: ADMITTED.
Immediate Consequences and Directions
- Moratorium declared with effect from the date of the order (24.03.2022) under Sections 13 and 14 of the Code—prohibiting institution or continuation of suits and other specified actions, transfer or disposal of assets by the Corporate Debtor, and actions to enforce security interests (including SARFAESI actions) during the moratorium period. The order also addresses supply of essential goods/services and exceptions contemplated in the Code.
- Interim Resolution Professional appointed: Mr. Purshotam Gaggar, P. Gaggar & Associates, Chartered Accountants, IP Registration No. IBBI/IPA-001/IP-P00487/2017-18/10875. The IRP is directed to make the public announcement of the moratorium and to perform the functions and duties prescribed under the Code and applicable Rules (including submission of assignment declaration within two days of the order).
- The Tribunal directed the Registry to communicate authenticated copies of the order to the Applicant/Financial Creditor, the Corporate Debtor, the IRP and the Registrar of Companies, Guwahati.
- The commencement of the CIRP is effective from the date of this order.
- The Tribunal recorded the claimed aggregate amount due to the Applicant Bank as Rs. 3,41,41,590.00.
Broader Implications
The opinion does not set out to establish any new legal precedent or novel legal principle; it applies the statutory admission criteria under Section 7 and declares moratorium and appointment of IRP in the ordinary course. Thus, the practical effect is the initiation of CIRP against M/s. Guwahati Construction Private Limited with attendant moratorium protections and IRP administration. The order does not articulate broader jurisprudential consequences beyond the direct effects on the parties.
Source: Order of the National Company Law Tribunal, Guwahati Bench dated 24.03.2022 in CP (IB) No. 21/GB/2021 (Indian Bank v. M/s. Guwahati Construction Pvt. Ltd.) — summary strictly based on the provided opinion text.
NATIONAL COMPANY LAW TRIBUNAL
GUWAHATI BENCH
GUWAHATI
CP. (IB) No. 21/GB/2021 Coram:
Hon'ble Shri Rohit Kapoor, Member (J) : Hearing through Hon'ble Shri Prasanta Kumar Mohanty, Member (T): Video Conferencing
ATTENDANCE-CUM-ORDER SHEET OF THE HEARING OF THE NATIONAL
COMPANY TRIBUNAL, GUWAHATI BENCH ON 24.03.2022
Name of the Company: Indian Bank
...... Financial Creditor
V/S
M/S. GUWAHATI CONSTRUCTION PVT. LTD
...... Corporate Debtor
Section: Under section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule
4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
S.No. NAME (CAPITAL LETTERS) DESIGNATION REPRESENTATION SIGNATURE
1. NONE - Petitioner/FC Present in video
2. NONE - Respondent/CD Conference
O R D E R
The Parties herein are represented through respective Learned Counsel (s). The case is fixed for pronouncement of order.
The Order is pronounced in the open court, Through Video Conferencing vide separate sheet.
Sd/- Sd/-
(PRASANTA KUMAR MOHANTY) (ROHIT KAPOOR)
MEMBER (T) & MEMBER (J) & ADJUDICATING AUTHORITY ADJUDICATING AUTHORITY
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NATIONAL COMPANY LAW TRIBUNAL
GUWAHATI BENCH
GUWAHATI
CP. (IB) No. 21/GB/2021 Coram:
Hon'ble Shri Rohit Kapoor, Member (J) : Hearing through Hon'ble Shri Prasanta Kumar Mohanty, Member (T): Video Conferencing
ATTENDANCE-CUM-ORDER SHEET OF THE HEARING OF THE NATIONAL
COMPANY TRIBUNAL, GUWAHATI BENCH ON 24.03.2022
Name of the Company: Indian Bank
...... Financial Creditor
V/S
M/S. GUWAHATI CONSTRUCTION PVT. LTD
...... Corporate Debtor
Section: Under section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule
4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
S.No. NAME (CAPITAL LETTERS) DESIGNATION REPRESENTATION SIGNATURE
1. NONE - Petitioner/FC Present in video
2. NONE - Respondent/CD Conference
O R D E R
[Date of Order: 24.03.2022] [Per se: Hon'ble Shri Prasanta Kumar Mohanty, Member (T)]
1. The present petition has been preferred by the Petitioner/Financial Creditor, i.e. Indian Bank under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a "Code") read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 seeking for initiation of Corporate Insolvency Resolution Process
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("CIRP" in short) in respect of the Corporate Debtor namely, M/S. Guwahati Construction Private Limited.
2. The Petitioner/Financial Creditor namely, Indian Bank, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 having its Registered Head Office at Office No. 254-260, Avvai Shanmugam Salai, Royapettah, Chennai-600014 and carrying on its Banking business through diverse branches and in particular a branch named, Indian Bank, SRCB Road, Fancy Bazar, Guwahati, Assam, Assam and is represented by its Chief Manager, Mrs. Vandana Singh. TAN of Indian Bank is IDIB000S504.
3. The Corporate Debtor namely Guwahati Construction Private Limited was incorporated on 21st Day of April, 2008 under the provisions of the Companies Act, 1956 vide CIN: U45201AS2008PTC008661 having its Registered Office at Suren Paradies, Opposite Hanuman Mandir, G.S Road, Lachit Nagar, Guwahati, Assam-
781007.
4. It is submitted by the Petitioner that:
4.1 The Total defaulted amount in the Term Loan account including uncharged interest calculated up to 23.06.2021 stands at Rs. 3,41,41,590.00 (Rupees Three Crores Forty-One Lakhs Forty-One Thousand Five Hundred Ninety Only) as on 23.06.2021.
4.2 The loan account became Non-Performing Asset (NPA) on 27.12.2018 and is still continuing as NPA account. The statements of account along with Memorandum of Interest and Loan Instalments Report and Certificate in accordance with the Banker's Book Evidence Act, 1891 (18 of 1891) have been filed with the Petition marked as ANNEXURE:
No. II.
5. The dates of default in the term loan Account occurred on several dates but declared as NPA on 27.12.2018.
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6. It is further submitted that
6.1 The Financial Creditor (FC) in course of its business considering the application of the Corporate Debtor (CD) had sanctioned Working Capital Term Loan of Rs. 4 Crore (Rupees Four Crores only) for development of "Tagore Apartment" at Maligoan, Guwahati with margin of Rs. 540.51 Lakhs with interest BR+3.50% p.a. with monthly rests, repayable in 5 equal quarterly installments of Rs.80 Lakhs each along with contractual rate of interest, starting from March, 2017 with moratorium period of 27 months. The Indian Bank as the Financial Creditor had sought to lodge this application for resolution of the loan account under the Insolvency Bankruptcy Code of 2016 with respect to its sanction in the form of Term Loan.
6.2 M/S. Guwahati Construction Pvt. Ltd. to avail the credit facility signed and executed necessary loan agreements through its directors, and also created equitable mortgage of property, a plot of land measuring 7 Kathas under Dag No. 545 (O) 208 (N) Patta no. 218 (N) in Gotanagar, Jalukbari Mouza at B.G Colony, Maligoan, Guwahati which was developed by the company under the cover of an Agreement and power of Attorney, along with Hypothecation of Construction Material at Site, also created equitable mortgage of a Residential Flat of the director Viz. Ashim Kr. Mandal at 2nd Floor, Rajat Enclave, Unit No. 2A, Lachit Nagar, Guwahati, measuring 1175 Sq. Ft. with a market value of Rs. 46.50 Lakhs and FSV of Rs.40 Lakhs as per valuation also created equitable mortgage of a plot of land measuring 3 Kathas adjacent to the project and held under irrevocable Power of Attorney by the company in the name of Isha Biswas covered by Dag No. 175 and Patta No. 218.
6.3 The Credit Facility was secured by creation of equitable mortgage of land measuring 1 (One) Bigha 2 (Two) Kathas, covered by Dag No. 545(O)/1774(N) and 208(N) under K.P Patta No. 218(O)/516(N) of Village Gotanagar, Mouza Jalukbari in the District of Kamrup (M) Assam in the name of Smt. Rita Mandal. Land measuring 3(Three) Kathas covered by Dag No. 544 (Patta No.
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70,79(O)/506/218(N) and after clubbing both the adjacent land the new demarcation stands as Dag No. 2017 of K.P Patta No. 199 of Village Gotanagar Mouza Jalukbari in the district of Kamrup(M) Assam in the name of Isha Biswas.
6.4 A residential Flat with super buildup area 1175 Sq. ft. being Flat No. 2A, situated at 2nd Floor under the name and style of SWARNALI APARTMENT. Along with proportionate share of 0.54 Acres situated over a plot of land measuring 1 Bigha
5 Lechas covered by Dag No. 996/1973 of K.P. Patta No. 1355 situated at revenue village Sahar Ulubari Part-II, under mouza Ulubari in the district of Kamrup (M), Assam.
6.5 The M/s. Guwahati Construction Pvt. Ltd. (Borrower) had also registered the charge over the secured properties (hypothecation and mortgaged properties) with the Registrar of Companies and relevant documents have been filed. The directors of M/s. Guwahati Construction Private Limited i.e. Shri Ashil Kumar Mandal and Smt. Rita Mandal along with one Ms. Isha Biswas stood as guarantor of the credit facility sanctioned to the borrower i.e. M/s. Guwahati Construction Pvt. Ltd.
7. Further, it is mentioned that since M/s. Guwahati Construction Pvt. Ltd (Borrower) failed to comply with the terms and conditions of the sanction and failed to repay the installment/dues or regularize the loan account in spite of repeated request made by the Indian Bank by showing various reasons.
8. The term loan account (A/C No. 50261323330) was classified as NPA on 26.08.2017. That on request made by the Corporate Debtor and on recommendation of Zonal Office of the Financial Creditor the credit facility was renewed vide its sanction letter dated 21.10.2017 by sanctioning Rs. 390 Lakhs under the terms and conditions as mentioned in the sanction letter. The Corporate Debtor again defaulted in repayment of the credit facility, as a result of which, the loan account of the Corporate Debtor has become NPA on 27.12.2018. Thereafter, having no other alternative, the Financial Creditor had issued several Reminder Letters to the M/s. Guwahati Construction Pvt. Ltd
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(Borrower), to pay the interest and the loan installments. M/s. Guwahati Construction Pvt. Ltd (Borrower) while admitting its liability had requested some time to pay the dues but failed to pay the dues.
9. The Petitioner/FC has also submitted the particulars of Financial Debt such as Documents, Records and Evidence of Default. The same are mentioned below:
9.1 Particulars of Security Held, the date of its Creation, its estimated value as per the Creditor: The Financial Creditor has sanctioned Term Loan of Rs. 400 Lakhs initially and reduced the amount to Rs. 390 Lakhs subsequently to the borrower M/s Guwahati Construction Pvt. Ltd. The term Loan facility is secured by creating equitable mortgage of following:
a. Created equitable mortgage of property, a plot of land measuring 7 Kathas under Dag No. 545 (O) 208 (N) patta no. 218 (N) in Gotanagar, Jalukbari Mouza at B.G Coloney, Maligoan, Guwahati in the name of one of the director of borrower Ms. Rita Mandal which is developed by the company. The same has been annexed as marked as ANNEXURE No. I-
XII.
b. Hypothecation of all the Construction Material at the construction site executed by the corporate debtor through authorized
representative/director and the same has been annexed herewith and marked as ANNEXURE No. I-XI.
c. Equitable mortgage of a residential Flat of the director Viz. Ashim Kr. Mandal at 2nd Floor, Rajat Enclave, Unit No. 2A, Lachit Nagar, Guwahati, measuring 1175 Sq. ft. with a market value of Rs. 46.50 Lakhs and FSV of Rs. 40 Lakhs as per valuation, the title documents have been annexed herewith and marked as ANNEXURE No. I-XXVI.
d. Equitable mortgage of a plot of land measuring 3 Kathas adjacent to the project land held under irrevocable Power of Attorney by the company in the name of Isha Biswas covered by Dag No. 175 and Patta No. 218. The
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title documents have been annexed herewith and marked as ANNEXURE No. I-XXI.
9.2 Particulars of an order of Court, Tribunal or Arbitral Panel Adjudicating on the Default:
e. The Financial Creditor as Applicant had filed an Original Application bearing O.A. No. 209 of 2019 before the Learned Debts Recovery Tribunal at Guwahati against the M/s. Guwahati Construction Private Limited / Corporate Debtor and personal Guarantors as Defendants for recovery of Rs. 4,97,21,710.00 (Rupees Four Crores Ninety-Seven Lakhs Twenty-One Thousand Seven Hundred Ten) and the said application is pending for disposal.
9.3 Record of Default as Available with any Credit Information Company: Credit Information reports as generated from Trans Union CIBIL (Annexure No.
XXXXVI).
9.4 Entries in a Bankers Book in accordance with the Bankers Book Evidence Act, 1891 (Annexure No. I-II).
9.5 Loan Application by the M/s. Guwahati Construction Private Limited. (Annexure No. I-VI).
9.6 List of documents attached to the application in order to prove the Existence of Financial Debt, the amount and date of default:
a. Demand Promissory Notes both dated 24.01.2015. (ANNEXURE No. I-
IX)
b. Term Loan Agreement dated 17.01.2015. (ANNEXURE I-X) c. General Letter of Hypothecation dated 17.01.2015. (ANNEXURE I-XI) d. Letter of Guarantee dated 17.01.2015. (ANNEXURE I-XII) e. Registered Sale Deed No. 14756 of 2009. (ANNEXURE I-XIII) f. Patta No. 506 in the name of Mr. Deep Sarma. (ANNEXURE I-XIV) g. Power of Attorney No. 3478/09 executed by Dr. Deep Sarma in favor of Sri Lakhiraj Deka and rectification deed No. 11778/09. (ANNEXURE I-XV)
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h. Irrevocable General Power of Attorney No. 1247/11 dated 19.04.2011 executed by Smti. Rita Mandal in favour of M/s Guwahati Construction Pvt. Ltd
i. Letter of confirming deposit of Title Deed by Ms. Rita Mandal dated 22.01.2015. (ANNEXURE I-XVI)
j. Letter of Mortgage confirming depositing Title Deed dated 22.01.2015. (ANNEXURE I-XVII)
k. Recital of mortgage. (ANNEXURE I-XVIII)
l. Deed of Sale No. 12119 of 2009 dated 16.10.2009. (ANNEXURE I-XIX) m. Resettled Final Patta No. 191 in the name of Smt. Isha Biswas. (ANNEXURE I-XX)
n. Power of Attorney No. 3003 of 2011 executed by Smt. Isha Biswas in favor of M/s Guwahati Construction Pvt. Ltd. (ANNEXURE I-XXI) o. Deed of Agreement No. 7068 of 2011 executed by Smti. Isha Biswas in favor of M/s Guwahati Construction Pvt. Ltd. (ANNEXURE I-XXII) p. Sale Deed No. 13603 of 2009 executed by Smti Khudi Kumar in favor of Smti. Isha Biswas. (ANNEXURE No. I- XXIII)
q. Letter dated 22.01.2015 executed by Smti. Isha Biswas confirming deposit of title document of her property (ANNEXURE I-XXIV) r. Recital of Mortgage (ANNEXURE I-XV)
s. Deed of Sale vide no. 6139/12 dated 29.06.2012 executed by Mrs. Ravi Pronita Pillai in favour of Sri Ashim Kumar Mandal. (ANNEXURE I-
XXVI)
t. NOC for construction from GMC dated 28.09.2004 (ANNEXURE I-
XXVII)
u. Deed of Agreement being deed no. 16499/07 dated 10.12.2007 entered between Sri Baikuntha Nath Patowari and M/s Swarnali Construction. (ANNEXURE I-XXVIII)
v. Trace Map. (ANNEXURE I-XXIX)
w. Deed of Sale No. 5123/08 dated 01.04.2008 (ANNEXURE I-XXX)
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x. Certificate dated 08.06.2007 issued by M/s Swarnali Construction (ANNEXURE I-XXXI)
y. Letter dated 22.01.2015 executed by Sri Ashim Kumar Mandal confirming deposit of title documents of his property. (ANNEXURE I-
XXXII)
z. Recital of Mortgage (ANNEXURE I-XXXIII) aa. Deed of Indemnity executed by representative of Corporate Debtor dated 17.01.2015 (ANNEXURE I-XXXIV)
bb. Deed of Indemnity executed by representative of Corporate Debtor dated 13.07.2015 (ANNEXURE I-XXXV)
cc. Deed of Indemnity executed by representative of Corporate Debtor dated 13.07.2015 by Ashim Kumar Mandal in favor of financial creditor (ANNEXURE I-XXXVI)
dd. Deed of Indemnity executed by representative of Corporate Debtor dated 13.07.2015 by Smti. Rita Mandal in favor of financial creditor (ANNEXURE I-XXXVII)
ee. Valuation Report (Series) (ANNEXURE I-XXXVIII) ff. Letter from corporate debtor requesting financial creditor for allowing repayment period of 42 months for the project loan of Rs. 400 lacs for their Tagore Apartment (ANNEXURE I-XXXIX)
gg. Copy of letter dated 10.08.2017 by the applicant. (ANNEXURE I-XXXX) hh. Sanction Letter dated 10.08.2017 in request of renewing credit facilities. (ANNEXURE I-XXXXI)
ii. Notice under Section 13(2) of the Sarfaesi Act, 2002 (ANNEXURE I-
XXXXII)
jj. Representation dated 20.02.2019 by Corporate Debtor. (ANNEXURE I-
XXXXIII)
kk. Reply by the authorized officer of the Financial Creditor 04.03.2019 (ANNEXURE I-XXXXIV)
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ll. Acknowledgement of liability dated 22.03.2016, 24.01.2017, 04.12.2018 (ANNEXURE I-XXXXV)
10. It is observed that the Respondent was not appearing in the matter. The learned counsel appearing for the Petitioner submitted that he had sent the petition copy to the Respondent as per order of this Bench but the same was returned with the remark "Addressee left". Earlier also, notice sent by the registry was returned with the remarks "Addressee left". The counsel for the petitioner prayed for admission of the matter. In the interest of justice, the Petitioner was directed to publish the notice in two daily
News Papers- one in English and the other in vernacular language i.e. Assamese
published from Guwahati giving 14 (fourteen) days clear notice to the respondent to
appear in person or through its Counsel on the next date of hearing.
11. The matter was taken up on 10.03.2022 but in spite of the publication of notice,
no one was present from the side of the Respondent. Sufficient Opportunities have been given to the Respondent to appear/file their replies in the matter. The counsel of the Petitioner submitted the details of the Loans disbursed, due date of repayment, default date of the loan and had prayed for admission of the Petition. The Counsel of the Petitioner had submitted that the Respondent was deliberately avoiding to appear before this Bench. Hence the Petition was heard ex-parte and order was reserved.
12. The Financial Creditor also has furnished the name of the Insolvency Resolution Professional to act as interim Resolution Professional
O R D E R
13. Heard the Counsel of the Applicant at length and perused the records/documents filed. Considering the materials made available by the Applicant Bank, arguments of the Counsel, this Adjudicating Authority is satisfied that:
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13.1 The Corporate Debtor availed the loan/credit facilities from the Financial Creditor;
13.2 Existence of debt is above One Crore;
13.3 Debt is due, payable and defaulted; Credit Information reports as generated from Trans Union CIBIL has been filed. (Annexure No.
XXXXVI).
13.4 Application has been filed within the limitation period, as the date of default is 27.12.2018, when the Application under Section 7 of the IBC has been filed by the FC i.e. Indian Bank on 23.09.2021; Debt Liability has been acknowledged on 22.03.2016, 24.01.2017 and
04.12.2018
13.5 Copy of the Application filed before this Bench has been sent to the Corporate Debtor, though returned but the notice was published in two News Papers for the appearance of the Respondent and the application filed by the Applicant Bank under Section 7 of the IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process in respect of the Corporate Debtor; Hence, the present IB Petition is admitted with the following directions/observations. The date of admission of this petition is 24/03/2022.
14. As per the provisions of Section 13 and 14 of the IB Code on the date of commencement of insolvency, this Adjudicating Authority declares moratorium with effect from today for prohibiting all of the following, namely:
14.1 (a) The institution of suits or continuation of pending suits 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.
(b) Transferring, encumbering, alienating or disposal of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein.
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(c) 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002).
(d) The recovery of any property by an owner or lessor where such property is occupied shall not be terminated or suspended or interrupted during the moratorium period.
14.2 Supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period.
14.3 The provisions of sub-section (I) shall not apply to-
(a) Such transactions as may be notified by the Central Government in consultation with any financial sector regulator.
(b) The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process.
15. This Adjudicating Authority hereby appoints, as proposed by the FC, Mr. Purshotam Gaggar, P. Gaggar & Associates, Chartered Accountants, Advika, 3rd Floor, Opp. Sukreswar Ghat Garden, M.G. Road, Panbazar, Guwahati-781001, Assam having IP Registration No. IBBI/IPA-001/IP- P00487/2017-18/10875 as an Interim Resolution Professional. The Interim Resolution Professional is further directed to make public announcement of moratorium in respect of Corporate Debtor soon after receipt of an authenticated copy of this order and to act further as per the order/direction issued by this Adjudicating Authority and to follow the provisions under Section 13 and 14 and other relevant provisions of the Insolvency and Bankruptcy Code. The IRP has to submit the Assignment Declaration before the Registry within 2 days from today.
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16. The IRP is hereby advised to adhere the time limit as stipulated for completion of the Corporate Insolvency Resolution Process ("CIRP") and perform the duties as specified under Section 17, 18, 20 and 21 of IB Code. The IRP shall perform all his functions contemplated, inter-alia, in Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost 29 dedication, honesty and strictly in accordance with the provisions of the 'Code', Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other persons
associated with the Management of the Corporate Debtor are under legal
obligation under Section 19 of the Code to extend every assistance and
cooperation to the IRP as may be required by him in managing the day-today
affairs of the Corporate Debtor. In case there is any violation, the IRP would
be at liberty to make appropriate application to this Tribunal 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 as a part of its
obligations imposed by Section 20 of the Code and perform all his functions
strictly in accordance with the provisions of the Code, Rules and Regulations.
17. It is also observed that the Applicant Bank has claimed an aggregate
amount of Rs. 3, 41, 41,590.00 (Rupees Three Crores Forty-One Lakhs Forty- One Thousand Five Hundred and Ninety only).
18. One of the prime objectives of the Insolvency and Bankruptcy Code, 2016 is to quickly find out a viable Insolvency Resolution Plan for the Corporate Debtor and in order to have a Resolution Plan viable, feasible and implementation successful, in the era of Minimum Cost of funds-based Lending Rate ("MCLR")/ Repo Linked Interest rate/Interest rate falling regime and competitive market condition, the Committee of Creditors (COC) may explore, while finalizing the Resolution Plan for the Corporate Debtor,
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the possibility of loading maximum interest at the Applicant Bank's One Year MCLR or One Year MCLR + 1% without any penal/overdue interest.
19. The Registry is hereby directed to communicate the authenticated copy of this order to the Applicant/ Financial Creditor, Corporate Debtor Company, the IRP and also to the Registrar of Companies, Guwahati immediately through speed post/ registered post and e-mail, if available.
20. The commencement of Corporate Insolvency Resolution Process shall be effective from the date of this order. Certified copy of the order may be issued to all the concerned parties, if applied for, upon compliance with all requisite formalities.
21. Thus, the present IB Petition filed under Section 7 of the IBC stands admitted today i.e. 24/03/2022 with the above Observations and Directions. Sd/- Sd/-
(Prasanta Kumar Mohanty) (Rohit Kapoor)
Member (Technical) Member (Judicial) & Adjudicating Authority & Adjudicating Authority
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