R. Varadharajan, Member - (1.) Rci Industries and Technologies Limited claiming to be a Financial Creditor of CK Infrastructure Ltd. has filed the above application seeking for the initiation of Corporate Insolvency Resolution Process (CIRP) under the provisions of Insolvency and Bankruptcy Code, 2016 (hereinafter for brevity called as IBC, 2016). The background of the claim as made before this Tribunal from the synopsis discloses that a loan amount of Rs. 50.00 lakhs based on the contract entered into between the Financial Creditor and the Corporate Debtor dated 1.1.2015 was made available to the Corporate Debtor, repayable within a period of 30 days i.e. on or before 31.1.2015 alongwith interest in a sum of Rs. 2,50,000/-. The Financial Creditor, it is stated has made available the funds of Rs. 50.00 lakhs by way of loan vide cheque No. 058170 dated 1.1.2015 drawn in favour of the Corporate Debtor. It is further averred that the said sum of Rs. 50.00 lakhs has also been transferred to the account of the Corporate Debtor, as evident from the statement of bank account of the Financial Creditor. It is further submitted that in acknowledgement of the said sum of Rs. 50.00 lakhs and as undertaken vide contract/agreement dated 1.1.2015 as signed between the parties, the Corporate Debtor had also issued a post dated cheque dated 31.1.2015 for a sum of Rs. 52,50,000/- which included the interest agreed to be paid of Rs. 2.50 lakhs. It is further submitted by the Financial Creditor that the post dated cheque had been issued by the Corporate Debtor drawn on Oriental Bank of Commerce and signed by the authorized signatory of the Corporate Debtor. The said cheque it is averred was not presented on the date as mentioned on the face of the cheque dated 31.1.2015 for the reason that the Corporate Debtor was seeking some time for repayment of the amount due and hence the request made by the Corporate Debtor (i.e.) presentation of the cheque was delayed for sometime, but ultimately it was presented on 4.3.2015. However, the said cheque of Rs. 52,50,000/- issued by the Corporate Debtor got dishonored on account of 'insufficient funds' which is also evident it is averred from the bank statement of the Financial Creditor showing the return of cheque due to 'insufficient funds'. Subsequent to the dishonor of the cheque it is the averment of the Financial Creditor that the Corporate Debtor had sent letter dated 31.3.2015 seeking for the replacement of the cheque which was earlier issued, with another cheque. Even though the earlier cheque was replaced with another cheque but due to repeated requests on the part of the Corporate Debtor it was not presented. However, contrary to the promises made by the Corporate Debtor, funds were not arranged and in the circumstances Financial Creditor was forced to a issue legal notice dated 6.7.2017 under the hand of its counsel demanding a sum of Rs. 73,85,959/- which also included the interest amount for the delayed payment calculated @18% per annum for the period from 1.4.2015 to 4.7.2017 amounting to Rs. 21,35,959/- in addition to the Principal sum of loan and interest of Rs. 2,50,000/- agreed and in all aggregating to a of Rs. 52,50,000/- as explained. Despite receipt of the said notice, Financial Creditor avers that the Corporate Debtor has not taken any effort to pay the amount in default and in the circumstances this Application has been filed on 9.8.2017 seeking to unfold the CIRP process.
(2.) Perusal of the Petition discloses that the Application seems to have been filed by M/s. Satinder Kapur & Associates, Advocates in the form prescribed under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for brevity (AAA Rules), under Rule 6 of the said Rules. However, in the margin provided at the bottom of the prescribed form in relation to name and position to the Financial Creditor and who is authorized to act on behalf of the Financial Creditor, the name of one Mr. Abhishek Kedia, Company Secretary is disclosed. Perusal of the document at page No. 51 of the typed set discloses that a certified true copy of the Resolution passed at the meeting of the Board of Directors of the Financial Creditor dated 3.8.2017 at its registered office has been enclosed under which it is seen that the said Mr. Abhishek Kedia, Company Secretary has been jointly and/or severally authorized to act as authorized representative of the company to initiate legal proceedings under IBC, 2016 and also to file necessary application amongst others before the jurisdictional bench of this Tribunal and taking into consideration the said Resolution it is seen that Mr. Abhishek Kedia is authorized to file this Application. Further, it is seen that the amount in default as claimed by the Financial Creditor is in excess of Rs. 1.00 lakh and as the territorial jurisdiction to entertain this Application is also available to this Tribunal, as the registered office of the Corporate Debtor it is averred by the Petitioner is located at LU-75, DDA Shopping Complex, Pitampura, Delhi-110034. In addition to the above compliances, Annexure-II of the Application also discloses that the Financial Creditor has proposed the name of Interim Resolution Professional (IRP) as set out in Form-2 under the provisions of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 as one Mr. Umesh Garg who has also given his consent to act as such, if appointed as the IRP, in relation to the CIRP of the Corporate Debtor. Further it has been disclosed by the person named as IRP to the effect that the said IRP is independent of the Corporate Debtor and other declarations in terms of IBC, 2016 and the Attendant Rules including the one governing the Corporate Insolvency Resolution Professional like the one named in the Application. Prior to the filing of the Application, it is seen that the Applicant has duly despatched an advance copy of the Application to the Corporate Debtor.
(3.) When the matter was listed before this tribunal on 17.8.2017 for the first time the Petitioner was directed to file an affidavit of service in relation to postal receipts alongwith tracking report and was also directed to take notice to the e-mail address available at the MCA website of the Corporate Debtor and was further directed to produce certificate issued by Insolvency and Bankruptcy Board of India (IBBI) to the Interim Resolution Professional and that the registration is still in vogue with IBBI. In compliance with the directions as given above, the Petitioner represented by its counsel had filed an affidavit on 24.08.2017 through the authorized signatory namely Mr. Abhishek Kedia which discloses that the Corporate Debtor has been served at its registered office in relation to postal receipt bearing consignment No. BRD804947613IN dispatched on 9.8.2017 at LU-75, DDA Shopping Complex, Pitampura, Delhi-110034. It is also stated in the affidavit that the consignment was delivered on 3.9.2017 as evidenced from the tracking report available at p.4 of the affidavit. Company's master data as maintained by the MCA in its website and the print out thereof dated 16.8.2017 discloses that the registered office address is the one stated as above namely LU-75, DDA Shopping Complex, Pitampura, Delhi-110034. The affidavit filed on behalf of the Petitioner also contains a certificate of registration of the IRP namely Mr. Umesh Garg annexed, perusal of which discloses that the certificate is valid from 30.5.2017 as issued by IBBL;