NCLT Jaipur (19.04.2023) In Jai Shree Mishra Vs. IDFC First Bank Limited [IA(IBC) No. 310/JPR/ 2022, IA(IBC) No. 473/JPR/2022 In Company Petition (IB) No. 39/94(1)/JPR/2022] accepted section 94 application observing compliance of the concerned provisions of the Code.
Excerpts of the order;
# 1. The Applicant, namely Mrs. Jai Shree Mishra, has filed an Application bearing CP No.(IB)-39/94(1)/JPR/2022, which is under consideration before this Authority under Section 94 r/w Sections 96, 97, 99, and 100 of the Insolvency and Bankruptcy Code 2016 (the ‘IBC’ / ‘Code’) r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 (‘Rules’), seeking initiation of Interim Resolution Process (‘IRP’) against the Applicant/ Debtor who is the Personal Guarantor of the Corporate Debtor, namely M/s Niroz Insulations Private Limited for an amount of Rs. 4,03,90,942/- (Rupees Four Crore Three Lakh Ninety Thousand Nine Hundred Forty-Two Only) in relation to the credit facility by the following Financial Creditor:
# 2. On presentation of the application by the Applicant, this Authority vide Order dated 24.06.2022 had appointed Mr. Prashant Sharma, bearing Registration No. IBBI/IPA-001/IP-P-00290/2017-2018/10534 as the Resolution Professional, to file a report under Section 99 of IBC, 2016 which has been filed by him through IA(IBC)No.310/JPR/2022.
# 3. The Present Application bearing IA(IBC)No.310/JPR/2022 has been filed by the Resolution Professional (‘RP’) under Section 99(1) read with Section 99(7) of the IBC recommending the admission of the application filed by the Creditor under Section 94 of the Code seeking commencement of Insolvency Resolution Process against the Debtor/Personal Guarantor, namely, Mrs. Jai Shree Mishra. The Resolution professional herein recommends acceptance of the said Application in accordance with Section 99(7) of IBC and the reasons for such recommendation as per Section 99(9) of IBC, 2016 are set forth as below:
i. That the Applicant/Personal Guarantor Mrs. Jai Shree Mishra, (Personal Guarantor) in CP- (IB)-39/94(1)/JPR/2022 herein falls within the parameters of Section 94(1) of the Code of 2016 as Applicant/Personal Guarantor has committed default in repayment of her liabilities in terms of debt arising on account of invocation of personal guarantee given by Applicant/Personal Guarantor towards Corporate Debtor Niroz Insulations Private Limited and the liabilities remained unpaid and accordingly, the requirement set out in Rule 3(e) of PG Rules, 2019 is satisfied.
ii. That the debtor has committed a default in payment of its liabilities and therefore, the requirement set out in section 94(1) of IBC is satisfied and the application has been filed in compliance with the provisions of Section 94(3) of the Code of 2016 as the said application has been submitted only in respect of debts which are not excluded debts as enumerated under Section 79(15) of the Code.
iii. That the Applicant/ Personal Guarantor does not fall under the prohibiting criteria mentioned under the provisions of Section 94(4) of the Code of 2016 and is entitled to file the said application under Section 94 of the Code of 2016 as the Applicant is:
- a. Not an undischarged bankrupt;
- b. Not undergoing a fresh start process;
- c. Not undergoing an insolvency resolution process; or
- d. Not undergoing a bankruptcy process.
iv. That the Applicant/Personal Guarantor is entitled to file the said Application pursuant to the criterion envisaged under Section 94(5) of the Code of 2016 as no application under Chapter III of the Code of 2016 has been admitted in respect of the Applicant/Personal Guarantor during the period of twelve months preceding the date of submission of the said Application under Section 94 of the Code, 2016
v. That the said Application has been filed by the Applicant/Personal Guarantor in compliance with Section 94(6) of the Code of 2016 in ‘Form A’ along with an application fee of Rs. 2,000/- as prescribed in Rules of 2019 and in the manner as prescribed under Rule 6(1) of Rules of 2019.
vi. That the application filed u/s 94(1) in accompanied with details and documents relating to:
- a) The debts owed by the Corporate Debtors (for whom the guarantee has been given by the personal guarantor) to creditors.
- b) Relevant evidence of such default or nor-repayment of debt.
vii. That the Applicant/Personal Guarantor is not eligible under Section 80 for fresh start process provided under Chapter II of the Code of 2016.
# 4. The Financial Creditor i.e., State Bank of India filed its reply vide, Diary No. 2999/2022 dated 11.10.2022 wherein it is submitted that the Corporate Debtor has failed to repay the due of the Bank and its account classified as NPA on 01.09.2020. Thereafter notice under section 13(2) of the SARFAESI Act, 2002 has been sent to the Corporate Debtor on 24.05.2021. Further, it is stated that an Original Application bearing No. 556/2021 is also pending for recovery of a sum of Rs. 1,66,87,693.00 (Rupees One Crore Sixty-Six Lakh Eighty-Seven Thousand Six Hundred Ninety-Three Only) as on 27.09.2021.
# 5. The Financial Creditor i.e., IDFC First Bank has filed an IA (IBC) No. 473/JPR/2022 vide Diary No. 2894/2022 dated 30.09.2022 stating the objections that the IDFC First Bank has advanced a personal loan facility to Triveni Agrotraders Pvt. Ltd. vide loan document No. 13596602 on 18.11.2017 for an amount of Rs. 15,00,000/- (Rupees Fifteen Lakh Only) in which the Applicant Jai Shree Mishra stands as co-borrower and not as a guarantor. Further, it is stated that as per MCA notification under Section 94 read with Rule 6 of Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtor) Rules, 2019 is not applicable to the Applicant as the Applicant is not personal guarantor but co-borrower in the loan facility.
# 6. The compliance of the relevant sections of the Code is as follows:
# 7. From the report there does not appear any request of the Resolution Professional for issuance of the instructions for the purpose of conducting negotiations between the debtor and creditors for arriving at a repayment plan. Therefore, based on the reasons recorded in the report submitted by the Resolution Professional, the application i.e., IA(IBC)No.310/JPR/2022 filed under the provisions of Section 94 of IBC is hereby admitted under Section 100 of the IBC.
# 8. Resultantly, Insolvency Resolution Process is initiated against Respondent/Personal Guarantor and a moratorium is declared, which begins with the date of admission of the application and shall cease to have effect at the end of the period of 180 days, as provided under Section 101 of IBC. During the moratorium period inter-alia, the following provisions shall be in effect;
a. Any pending legal action or proceeding in respect of any debt shall be deemed to have been stayed; and
b. The creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt; and
c. The debtor shall not transfer, alienate, encumber, or dispose of any of his assets or his legal rights or beneficial interest therein;
d. The provisions of this Section shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.
# 9. The Resolution Professional viz., Mr. Prasant Sharma, who has been appointed under Section 97 vide order dated 24.06.2022, is directed to cause a public notice to be published on behalf of the Adjudicating Authority within 7 days of uploading of this order on the website of NCLT, inviting claims from all Creditors, who shall register their claims as provided under Section 103 within 21 days of such issuance. The notice shall contain the necessary information as provided under Section 102(2) of IBC. The publication of notice shall be made in newspapers, one in English and other in Vernacular which have wide circulation in the state where the debtor resides. The Resolution Professional shall furnish two spare copies of the notice to the Registry. One shall be placed by the Registry on our website and the other shall be affixed in the premises of this Authority.
# 10. The Resolution Professional in exercise of the powers conferred under Section 104 shall prepare a list of creditors within 30 days from the date of the notice. The debtor shall prepare a repayment plan in consultation with the Resolution Professional as provided under Section 105 which shall include the provisions for payment of fee to the Resolution Professional. The Resolution Professional shall submit the repayment plan along with his report on the plan to this Authority within a period of 21 days from the last date of submission of claims as provided under Section 106.
# 11. In case the resolution professional recommends that a meeting of the creditors is not required to be summoned, he shall record the reasons therefor. If the resolution professional is of the opinion that the meeting of the creditors should be summoned, he shall specify the details as provided under Section 106(3). The date of meeting should not be less than 14 days or more than 28 days from the date of submission of the report under sub-section (1) of Section 106, for which at least 14 days’ notice to the creditors (as per the list prepared) shall be issued by all relevant/feasible modes. Such notice must contain the details as provided under the provisions of Section 107.
# 12. The meeting of the creditors shall be conducted in accordance with sections 108, 109, 110 & 111. The Resolution Professional shall prepare a report of the meeting of the creditors on the repayment plan with all details as provided under Section 112 and submit the same to this Authority, copies of which shall be provided to the debtor and the creditors. It is made clear that the resolution professional shall perform his functions and duties in compliance with the Code of Conduct provided under Section 208 of the IBC, 2016.
# 13. In terms of the above, CP No. (IB)-39/94(1)/JPR/2022 filed under Section 94 of the IBC, is admitted and the Insolvency Resolution Process stands initiated against the said Debtor/Personal Guarantor i.e. Mrs. Jai Shree Mishra. Accordingly, IA No. 310/JPR/2022 stands disposed off.
# 14. Further in the view of forgoing all the pending IAs in the present matter stands disposed off.
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