L

IN THE NATIONAL COMPANY LA\4/ TRIBUNAL

JAIPUR BENCH (RAJASTI{,AN)
CP l\l'o" (IB)-59/7/JFRI20 1 9

Coram: Dr, P.S.N. PRASAD,

HON'BLE JUDICIAL MEN{BER
SHRI RAGIIU NAYYAR,
HON'BLE TECHNICAL MEMBER

IN THE MATTHR OF SECTION 7 OF IBC, 20115"

IN THE MATTER OF:

ORIENTAL BANK OF COMMERCE
Registered Office: PIot No. 5, Sector 32,
Industriafl Area, Gungaon - 122001 (Haryana)

...FINANCIAL CREDITORIAPPLICANTT

VERSUS

SUPER SHIV SHAKTI CHEMICALS PRIVAT]E LIMITED

C-ltrz, Shastri Nagar, Near Shyam Temple,
Bhilwara- 31 1001 (Rajasthan)

... CORPORATE DEts TOR/RESPON DEI{T'

FOR PETITIONER (S) : Raj Kumar, ADV.

FOR ITESIDONDEIYT(S) : Prabhansh Sharma, Adv.

Oriental Bank of Commerce

Versus
Super Shiv Shakti Chemicals Private Limited GFf
//
 2

ORDER PRONOLTNCED ON: -10.01.2020

ORDER

Per: Shri Raghu Nawar. Technical Member

1. This Application is filed by the oriental Bank of Commerce, (,.Applicant',),

claiming to be a Financial Creditor, through Krishna Prasad Samantaray, its

Authorised Signatory and Assistant General Manager, who is duly

authorized vide Authority Letter dated 04.02.2019 to file this Application

against the Corporate Debtor, Super Shiv Shakti Chemicals Private Limited

("Corporate Debtor") under Section 7 of the Insolvency and Bankruptcy

code, 2016 (IBC, 2016) read with Rule 4 ofthe Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016 seeking initiation of

the Corporate Insolvency Resolution Process (CIRP), pursuant to default in

repayment of loan amount by the corporate Debtor to the Applicant.

2" The Applicant is a Banking company, constituted under the Banking

companies (Acquisition and Transfer of undertaking) Act, l9g0 and the

PAN Number of the Applicant company is AACo0l9lM. The Registered

office ofthe company is at PlotNo. 5, Sector 32, Industrial Area, Gurgaon-

122001(Haryana).

Oriental Bank of Commerce

Versus
GFf
Super Shiv Shakti Chemicals private Limited
 3

3. The Respondent is a Private Limited Company. incorporated under the

Companies Act, lg56,on 30. ll.zl}4and duly registered with the Registrar

of Companies, Jaipur bearing CIN: 1J24119RI2004PTC019955" The

Registered office of the Company is at C-l12, Shastri Nagar, Near Shyam

Temple, Bhilwara- 31 1001 (Rajasthan). The authorized share capital of the

company is Rs. 16,90,00,000/- (Rupees Sixteen Crore Ninety Lakh Only)

and paid up share capital is Rs. 15,g9,00,000/- (Rupees Fifteen crore

Eighty-Nine Lakh Only). The Respondent is engaged in the business of

manufacturing /supply of different type of explosives.

4. It is the case of the Applicant that the Respondent has availed various credit

facilities namely Cash Credit Facility of Rs. 5,00,00,000/- vide sanction

letter dated 09.01 .2013, Term Loan I of Rs. 3,64,00,000/- sanctioned vide

letter dated 17.10.2013 and Term Loan II of Rs. 10,00,00,000/-sanctioned

vide letter dated 17.02.2015. The term loan I was repayable in 78 monthly

instalments of Rs. 4,67,0001- plus interest at the rate of 13.50% subject to

changes in base rate and additional interest at the rate of 2Yo p.a. over and

above the normal rate on overdue portion in case of default. The Term Loan

II of Rs. 10,00,00,000/- was repayable in 24 quarterly instalments of Rs.

41,67,0001' after moratorium of 9 months on same interest rate as Term

Loan I. The said cash credit facilities were renewed and the limits have been

Oriental Bank of Commerce

Versus
q<Nr
Super Shiv Shakti Chemicals Private Limited --
 4

enhanced from time to time by the Applicant as per the request of the

Respondent. The Applicant further submits that the Corporate Debtor has

executed various loan and security documents in order to avail said loan and

credit facility.

5" The Applicant fuither submits that since the Corporate Debtor did not

maintain financial discipline, the Loan Accounts of the Corporate Debtor

were classified as NPA on 30.03.2017. The Applicant has filed Balance and

Security Confirmation letter dated 28.03.2016 in which the Respondent has

confirmed outstanding amount towalds Applicant of Rs. 11,14,37.047 of

cash credit, Rs. 2,56,59,000/- of Term Loan I and Rs. 9,5g,33,333 of Term
Loan II. Thereafter the Applicant has issued Notice dated 05.02.2019 under

Section 13 (2) of the SARFAESI Act, 2002 to the Corporate Debtor and

Guarantors and demanded an outstanding amount of Rs. 27,05 ,47,7051- of

Cash Credit, Rs. 9,32,35,029.22 of Term Loan I and Rs. I ,94,36,06gl- of
Term Loan II but the outstanding amount rvas not repaid. Copy of Dernand

Notices were annexed as Annexure-32 with the Application.

6. As a consequence of default, this Application was filed. As claimed by the

Applicant, the Corporate Debtor is liable to pay aggregate amount Rs.

37,87,08,562.221- as on 25.02.2019 as an outstanding amount, as reflected

in Part IV of the Form - 1 filed.

Oriental Bank of Commerce

\-KJ-T
Versus -/
Super Shiv Shakti Chemicals Private Limited
 Fart {V

S. no. Particulars of Financial Debt

I Total amount of debt Amount of Loan granted:-

granted date(s) of a) Term Loan I of Rs. 3.64 Crores
disbursement. b) Term Loan II of Rs. l0 Crores
c) Cash Credit of Rs. 2l Crores
Total (a+b+c): Rs. 34.64 Crores
2" Amount ctraimed to be in Outstanding Amount as on
default and the date on 25.02.20t9
which the default occurred a) Term tr-oan I Account
Rs. 8.97,2 4,7 89.221- with interest.

b) Term Loan Account Rs.

1,84,36,068/- with interest.

c) Cash Credit Account

Rs. 27,05 ,47 ,7051- with interest.

Total (a+b+c) : Rs" 37,87,08,562.221-

Date of Default is the day on which

Corporate Debtor was declared as
NPA i.e. 30.03.2017

7 " The Respondent has filed reply to the Application vide Dairy No. 13712019

Dated 26.07.2019. The Respondent had raised an objection that no relief

has been sought in the Application filed by the Applicant. The atEdavit filed

by Applicant is not in compliance with Form No. NCLT-6 of NCLT Rules,

2016" The Applicant has not filed the Board Resolution in respect of power

given to the General Manager to authorise Mr. Krishna Prasad Samantaray

Oriental Bank of Commerce

Versus
Super Shiv Shakti Chemicals Private Limited
C;-f
 6

to file an Application. It is funher submitted that the statement of accounts

furnished with Application is from the period of 28.03.2016 whereas CC

limit was sanctioned on 09.01 .2013 and the first transaction took in year

2013. The name of the proposed IRP in Form I Part III is mentioned as Mr.

Brajeesh Verma whereas Form 2 is filed by Mr. Brajesh Kumar Verma. In

Form No. 1 of Part IV filed by the Applicant. instead of total amount of debt

due and date of disbursement the Applicant has mentioned total outstanding

as on 25.02.2019 Rs. 37,87,08,562.221-. Also, at Sr. No. 2 of Part IV instead

of amount claimed and date of default date of NPA and SARFESI notice is

mentioned. The Application is not accompanied enclosed with a copy of

certificate of Registration of charges issued by the Registrar of Companies.

8. The Respondent further submitted that the it was holding Licence No.

E/HQru n0l2r(F'23420), E/HQru 134(870164) and

E/HQ/RI/20122(823432) for manufacturing of explosives. It is an admitted

fact that for expansion of business and to meer working capital requirement,

the Respondent took loan facilities and CC facility from Applicant and the

said CC facility has been enhanced from time to time. On I1.08.2016 an

accident took place at the factory of the Respondent because of which 4 died

and 1 got injured. Consequently on 12.09.2016 the Chief Controller of

Explosives (CCE) has suspended licence No. E70l 64 and23420. Thereafter

the company through several letters requested CCE to grant permission to

Oriental Bank of Commerce

Versus
Super Shiv Shakti Chemicals Private Limited
GFf
-/
 7

start slurry/ emulsion explosive plant under Licence No. E23432 while

claiming that the said plant is unaffected by the accident dated 1 1.08"2015.

The company has filled writ petition vide SBCWPNO. 1512112016 before

Hon'ble High Court of Judicature Rajasthan at Jodhpur for revocation of

suspension of manufacturing licences issued by CCE" The Hon'ble High

Court of Judicature Rajasthan vide order dated 03.08.2017 allowed the writ

petition and directed the CCE to consider the request of the petitioner

company for revocation of suspension of explosives licenses. In between

due to no operations the account of the Respondent with the Applicant

turned NPA on 30.03.2017.

9. The R.espondent further submits that turnover of the Respondent during the

interim suspension period dipped considerably. It is fuither stated that on

revival of the operations the Applicant stated that they would transfer and

retain 10% of the amount realized by the corporate debtor which was done

by Applicant, later Applicant started retaining 15 % due to which it become

diffrcult for the Respondent to continue operations of the unit. Ultimately in

January 2019 the Respondent had to close the unit.

10" The Respondent has admitted its inability to pay the debt amount in its

prayer in the reply and the same is reproduced below:

Oriental Bank of Commerce

q(5f
Versus
Super Shiv Shakti Chemicals Private Limited
-/
 "The corporate debtor is trying its best to present a onetime settlement

proposal to the Applicant consequent to release of the Insurance claim

(latest communication with the Insurance co. attached as Annexure

R4 ) andfinding a suitable investor to infusefunds in the company .

That the Corporate debtor is in discussion with the higher fficials of

the Applicant to sort out the matter and needs three to six months' time

to revive the operations by presenting an OTS which is in line with the

objects of the Insolvency and Banlruptcy Code, 2016 which has beert

brought to promote entrepreneurship and not with an intent to be an

Actfor recovery of dues."

I 1. In view ofthe inherent admission made in the reply by the Corporate Debtor,

the Corporate Insolvency Resolution Process can be initiated against the

Corporate Debtor, as it has committed default and the default is more than

one laktr of rupees"

12" This Tribunal perused all the relevant papers and found them to be in order.

The Registered Office of Corporate Debtor is situated in Bhilwara and

therefore this Tribunal has jurisdiction to entertain and try this Applioation.

The matter is within the limitation period as enunciated under the Law of
Limitation.

Oriental Bank of Commerce

Gr.f
Versus --
Super Shiv Shakti Chemicals Private Limited
 9

13. The Applicant has named one Mr. Brajesh Kumar Varma having

Registration Number IBBI/IPA-002/IP-N0049 ll20l7- 18/1 13 8 I (email:

varma.braj [email protected], Mobile No. : 8 8 74 7 47 5 5 5), duly registered with

ICSI Insolvency Professional Agency, to be appointed as the Interim

Resolution Professional. The Applicant has filed Consent in Form 2 under

Insolvency and Bankruptcy Board of India (Application to Adjudicating

Authority) Rules, 2016 stating therein that no disciplinary proceedings are

pending against the named IRP.

14. Consequences of initiation of CIRP shall be inter-alia as follows:

(i) The Resolution Professional proposed by the Applicant is Mr.

Brajesh Kumar Varma who is an IP registered with ICSI Insolvency

Professional Agency having Registration No. IBBI/IPA-002|IP-

N00491/2017-18/11381. He is hereby appointed as the Insolvency

Resolution Professional (IRP) to take over the affairs of the

Corporate Debtor and duties as required to be performed by him

under the provisions of IBC, 2016 including issue of publication in

widely circulated Newspaper as contemplated under the provisions

of IBC, 2016 and calling for the claims from the creditors of
Corporate Debtor and collation of the same shall be done.

<laNf
Oriental Bank of Commerce --
Versus
Super Shiv Shakti Chemicals Private Limited
 10

(ii) Further" as a sequence of admission, moratorium as envisaged under

Section 14 of IBC, 2016 is invoked in relatiore to the Corporate

Debtor which will be in vogue during the Corporate Insolvency

Resolution Process of the Corporate Debtor" The IRP shall carry out

CIRP strictly as per the timelines specified and as envisaged under

the provisions of IBC,2016 in relation to the Corporate Debtor.

(iii) The said IRP shall act strictly in compliance with the provisions of

IBC, 2016 and with a view to defray his expenses to be incurred and

fees on account, the Applicant is directed to deposit a sum of Rs"

2,00,0001- (Two Lacs only) to the account of IRp within three days

from the date of this order. The IRP shall duly file a status report

from time to time appraising this Tribunal about the progress of

CIRP unfolded in relation to the Corporate Debtor. In terms of

Section t7 & 19 of IBC , 2016 all personnel of the Corporate Debtor

including promotors and Board of Directors, whose powers shall

stand suspended shall extend all cooperation to the IRP during his

tenure as such and the management of the affairs of the Corporate

Debtor shall vest with the IRP.

(iv) In terms of Section 7 of IBC, 20l6,this order shall be communicated

to the Applicant, Corporate Debtor as well as the Interim Resolution

Professional (IRP) appointed by this Tribunal to carry out the CIRP

Oriental Bank of Commerce

GNf -t
Versus
Super Shiv Shakti Chemicals Private Limited
 71.

at the earliest, not exceeding one week from today. A copy of this

order shall also be communicated to IBBI for its records"

(v) In the circumstances, this Company Petition is admitted.

Sa-
RAGHU NAYYAR.,
S]II" Dr. P.S.N. PRASAD
MTEMBER (TECHNIC,AL) MEMBER (JUDICIAL)

Mcrnsi l.

Oriental Bank of Commerc€

Versus
Super Shiv Shakti Chemicals Private Limited