Rajeswara Rao Vittanala, Member - (1.) The present Company Petition bearing CP No. 50/10/HDB/2017 is filed by M/S. AMEYA LABORATORIES LIMITED (ALL) (petitioner/Corporate Debtor, U/s. 10 of Insolvency and Bankruptcy Code 2016 (IBC), by seeking to Initiate Corporate Insolvency Resolution Process under IBC 2016, in respect of AMEYA LABORATORIES LIMITED.
(2.) Brief facts, leading to the filing of present Company Petition, are as follows: 1) The Company was incorporated on 20.02.1996 as "Anu's Laboratories Limited" with Registration No. 01-23283 with the Registrar of Companies, Hyderabad, Andhra Pradesh. Subsequently, the name of the company was changed to "AMEYA LABORATORIES LIMITED" vide certificate of Incorporation, consequent upon change of name dated 16.09.2013 issued by Registrar of Companies, Hyderabad, Andhra Pradesh. 2) The petitioner Company has taken loans from various banks and a statement of loans and defaults are furnished below: 3) When the Petitioner Company was unable to pay Loans, and committed defaults to various Creditors, it has filed a Reference with BIFR U/S. 15(1) of the Sick Industrial Companies (Special Provision) Act, 1985, and the same was registered as Case No. 83 of 2005. While the Case was pending, the Government of India by Notification Dated 25/11/2016, the Sick Industrial Companies (Special Provision) repealed Act 2003, is issued making all proceedings or appeals of whatever nature pending before BIFR/AAIFR as abated w.e.f. 01/12/2016. Since said BIFR proceedings are pending, while the said repeal act came into force, the present Company Petition is filed under IBC 2016. 4) M/S. Elder Pharmaceuticals Limited (ELZENA), one of the Financial Creditor of the Petitioner company has filed a Company petition No. 33 of 2013 before the Hon'ble High court of Judicature at Hyderabad for the state of Telangana and the state of Andhra Pradesh U/S. 433(e) & (f) and 439(c) of the Companies Act, 1956 and Rule 95 of the Companies (court) Rules, 1959, by seeking the following directions. (i) That Anu's Laboratories Limited, the Respondent Company herein be wound up by and under the order and directions of this Hon'ble court under the Provisions of the companies Act, 1956. (ii) That the Official liquidator, A.P. High Court be appointed as the Liquidator of the Respondent company with all necessary powers to take charge of the assets and properties of the company and to distribute the same as per the directions of this High Court. (iii) That, pending the hearing and final disposal of this petition, the Official Liquidator, High Court of A.P. or some other fit and proper person be appointed as the provisional Liquidator of the Company, with all powers under the Companies Act, 1956. (iv) That, pending the hearing and final disposal of this petition, this Hon'ble court, be pleased to pass an order of injunction restraining the Respondent Company, its agents and servant from in an manner disposing off and/or parting with possession of and/or alienating, encumbering and/or transferring and/or creating any right, title or interest in any manner whatsoever in favour of any person whosoever, except in the ordinary course of its business in respect of all the assets of the Respondent company; (v) For ad-interim and interim relief in terms of prayer (iii) and (iv) hereinabove; (vi) That cost for petition be provided for; 5) Accordingly, the Hon'ble High court, after considering the indebtedness of the petitioner Company, by an order dated 20th April, 2015, ordered the petitioner Company to be wind up by appointing official Liquidator attached to the Hon'ble High Court. 6) Aggrieved by said order of Hon'ble High Court, AMEYA LABORATORIES LIMITED, the petitioner, herein, has filed application No. 940 of 2015 in O.S.A. No. 35 of 2015 before Division of Hon'ble High Court, by inter-alia, seeking to grant stay of all further proceedings pursuant to winding up order passed on 20th April 2015 in OP No. 33 of 2013. After considering the issue, the Court passed an order dated 19th August 2015, which reads as follows: "In view of the law declared by the Supreme Court in RISHSABH AGRO INDUSTRIES LTD., all proceedings on or after 02.07.2015 shall, in view of section 22 of the Act, be stayed. It is made clear that the stay would operate only from 02.07.2015 onwards, and all proceedings prior thereof shall remain in force. Needless to state that, this order shall not preclude the respondent-creditor from invoking the Jurisdiction of BIFR under the provisions of the Act". 7) While the matter stood thus, the petitioner has filed the present Petition by seeking to initiate CIRP under the provisions of IBC. 8) Kotak Mahindra Bank LTD. the Respondent No. 1 herein, has opposed the petition by filing a counter dated 6th June 2017. The following are their main contentions: a) The present Company petition is nothing but a gross abuse of process of law, and it has filed with an ulterior motive to stall this Respondent and other secured Creditors from enforcing their securities, under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) as the process of recovery is at an advanced stage, where in one of the secured asset of Company was already sold. b) It is stated that the stay order date 19th August 2015, passed by the Hon'ble Division Bench of High Court in Application No. 94 of 2015 O.S.A. No. 35 of 2015 at Hyderabad, doesn't amount to setting aside winding up order date 20th April 2015. So, the present Petition is not maintainable under section 11(d) of IBC and thus, it is liable to be rejected on this ground alone. c) It is alleged that the Petitioner has taken mutually contradictory stands in two forums i.e., before High Court at Hyderabad, and before this Tribunal, which is Impermissible under law., The petitioner has not approached this Tribunal with clean hands and it is contumacious. d) They have pointed out that the erstwhile ING Vysya Bank Ltd. has sanctioned term loan, and working capital facilities to the Petitioner. The Petitioner had mortgaged immovable properties in favour of ING Vysya Bank Ltd. as security for discharging the loans sanctioned. ING Vysya Bank Ltd. merged with this Respondent (Kotak Mahindra) in pursuant to a scheme of amalgamation. The same has been sanctioned by the Reserve Bank of India vide its order No. DBR. No. PSBD/4476/16.01.136/2014-15 dated 31.03.2015. It was ordered by the Reserve Bank of India, vide order of even date that the said scheme of amalgamation would come in to effect from 01.04.2015. Accordingly, the account of the petitioner with ING Vysya Bank Ltd. stood transferred to this Respondent including all documents, rights and obligation in relation to the Credit Facilities granted by ING Vysya Bank, all securities, personal guarantees etc. Consequently, this Respondent stepped into the shoes of ING Vysya Bank Ltd. in so far as the credit Facilities granted by ING Vysya Bank Ltd. to the petitioner Company is concerned. e) It is further stated that they have conducted auction for the sale of Unit III at Vishakhapatnam under SARFAESI Act, 2002, Andhra Pradesh in January, 2016. A buyer approached for the purchase of Unit III and sale concluded on 25.07.2016, wherein the defendant was a confirming party to the sale under Private Treaty of SARFAESI Act, 2002. The property was registered in the name of the Buyer on 29.07.2016. The Promoter of Petitioner Mr. K. Hari Babu also informed the Bank in Joint Lenders Meeting dated 20th September 2016 and 16th December 2016 that he would be submitting a proposal for one-time settlement of all its dues to the Bank. However, the petitioner failed to come out with any such settlement so far. f) It is stated that since May, 2015, the representatives of this Respondent, IDBI Bank Ltd. the State Bank of India, and the Karur Vysya Bank Ltd. have been periodically meeting for the purpose of reviewing and finalizing, not only mode of recovery of their respective outstanding amounts but also to enforce their common security interest created by the Petitioner. This Respondent, the IDBI Bank Ltd. the State Bank of India, and the Development Credit Bank, Karur Vysya Bank Ltd. constitute more than 75% of creditors in Value. In the last meeting held on 12-05-2017 among the representative of the respondents, IDBI Bank Ltd., the State Bank of India, and the Karur Vysya Bank Ltd. it was resolved to oppose the present petition. g) Therefore, they have prayed the Tribunal to reject the present petition with exemplary costs.
(3.) Idbi Bank Limited, the 2nd Respondent herein, has also filed separate a counter dated 14th June 2017, by opposing the Company petition. The following are main contentions raised in their counter: a. They have stated that, at the request of the petitioner Company in the month of September 2008, the Bank has sanctioned various credit facilities, such as Cash Credit of 1500/- lakhs, Letter of Credit of Rs. 2000/- lakhs totally amounting to Rs. 3500 Lakhs vide sanction Letter Ref. No. 617/IDBI/MCG/HKT, Dated: 20-01-2011 and later vide letter No. 37/MCG/ALL dated 18-04-2011, The facilities were again renewed and enhanced from Rs. 35 Crore to 40 Crore. Further as per the sanction letter, the Respondent Bank is having first pari passu charge on the entire current assets of the company both at present and in future by way of hypothecation and second pari passu charge on entire fixed assets of the company. Sri K. Hah Babu and Sri N.S. Walimbe, promoters and directors of the respondent company have executed personal guarantees for the above said credit Facilities sanctioned to the Company. b. It is further stated that beside filing of O.A. No. 1432 of 2014 before the DRT for recovery of more than Rs. 34 Crores, the Bank has also initiated SARFEASI proceedings against the Petitioner Company, and on the secured properties and in the said process, the secured creditors have sold the property situated at Vishakhapatnam under the lead of Kotak Mahindra Bank Ltd. and out of the said sale proceeds this Respondent Bank has received a sum of Rs. 1,22,26,468/- towards its Share and the Petitioner Company is still due to pay a sum of Rs. 56,90,97,174.24 as on 05-06-2017. c. In pursuance to default committed by the Petitioner, its account was classified as NPA as per the guidelines of the RBI, as such this Respondent Bank initiated SARFEASI proceedings against the Petitioner Company and on mortgaged properties. While the matter stood thus, the Petitioner Company by suppressing the material facts of initiating the recovery proceedings against the petitioner Company by filing above said O.A. No. 1432 OF 2014 before the Debt Recovery Tribunal at Hyderabad and initiation of the SARFEASI proceedings against it, has approached BIFR under the provision of the Sick Industrial Companies (Special Provisions) Act 1985 and it was registered as Case No. 83 of 2015. d. It is contented that stay orders dated 19th August, 2015 passed by the Hon'ble High Court at Hyderabad, cannot be understood that the winding up of Orders dated: 20-04-2015 passed by Hon'ble High Court in C.P. No. 33 of 2013 were set aside due to the fact that still the OSA filed by the Petitioner Company is pending before the Hon'ble High Court at Hyderabad. So the instant Company petition is not maintainable as per section 11(D) of the IBC 2016. Therefore, it is liable to be dismissed at the threshold without any further consideration. e. It is further stated that since May 2015, the officials of this Respondent Bank, and other secured creditors viz., Kotak Mahindra Bank Ltd. the State Bank of India, Development Credit bank and the Karur Vysya Bank Ltd. etc., have been periodically meeting for the purpose of reviewing and finalizing the modes of recovering their respective outstanding due amounts from the Petitioner Company, by enforcing the common security created in their favour. This Respondent Bank and the other secured creditors stated above constitute more than 75% of the creditors in value, and in the last meeting held on 12-05-2017 among the officials of the Respondent Bank and the other secured creditors referred above, it was resolved to oppose the present Petition filed by the Petitioner Company.;