G. Sreevidhya vs Karismaa Foundations Pvt. Ltd

Ch. Mohd. Sharief Tariq, J

Under adjudication is CP/769/IB/2018 that has been filed by Ms. G. Sreevidhya (hereinafter referred to as ‘Financial Creditor’) under

Section 7 of the Insolvency and Bankruptcy Code, 2016 r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules,

2016 against M/s. Karismaa Foundations Private Limited (hereinafter referred to as ‘Corporate Debtor’). The prayer made is to admit the

Application, to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, declare moratorium and appoint Interim

Resolution Professional (IRP).

Heard the Counsels for the Financial Creditor, Corporate Debtor and perused the pleadings including the documents placed on file.

The Financial Creditor has claimed an amount of Rs. 1,66,20,715/- as outstanding against the Corporate Debtor as on 29.05.2018.

The brief facts of the case are that a Construction Agreement dated 10.11.2014 was entered into between the Financial Creditor and the Corporate

Debtor for construction of a residential building at the site of the Financial Creditor at Koturpuram. Copy of Agreement is placed at pages 1 and 2 of

the typed set filed with the Application. The terms and conditions of the Agreement provide that the Corporate Debtor was under obligation to

construct a residential building for the Financial Creditor was supposed to pay Rs. 4 Crores. An advance amounting to Rs. 1.15 Crores was agreed to

be paid within 30 days of signing the agreement and balance in equal installments over the construction period. The time period for construction of

residential building was 18 months from the date of the approval and based on the design and specification given by the Financial Creditor.

Pursuant to the above mentioned agreement, the Financial Creditor has paid the advance amount of Rs. 1.50 Crores by way of RTGS on

05.12.2014 through Indian Overseas Bank, Raja Annamalaipuram Branch, as reflects from Bank statement placed at page 3 of the typed set filed

with the Application. The same was confirmed by the Corporate Debtor vide its Confirmation of Accounts dated 01.04.2015, which is placed at page

4 of the typed set filed with the Application. Immediately thereafter, the Corporate Debtor started to make interest payments on the amount advanced

with effect from 05.12.2014. The last payment of interest was made by the Corporate Debtor to the Operational Creditor on 30.06.2016 @ 15% per

annum which reflects from Confirmation of Account dated 06.07.2016, which is placed at pages to 30 to 32 of the typed set filed with the Application.

The detail of the principal amount and interest is placed at page 33 of the typed set filed with the Application.

It is also placed on record that for payment of the balance loan amount, the Corporate Debtor had given one Cheque dated 30.06.2015 drawn on

State Bank of Travancore, for an amount of Rs. 1.35 Crores to the Financial Creditor, but the same was dishonored with an endorsement

“exceeds arrangementâ€​ on presentation, copies of the same are placed at pages 5 and 6 of the typed set filed with the Application.

Thereafter, on 01.10.2015 the Financial Creditor has issued a statutory notice under Section 138 of the Negotiable Instruments Act, 1881, for

payment of Rs. 1.35 Crores within 15 days from the receipt of the notice, to which on 19.10.2015, the Corporate Debtor issued a reply notice thereby

admitting its claim to the tune of Rs. 1.25 Crores and issued 4 post dated Cheques in favour of the Financial Creditor in discharge of its loan and

requested the Financial Creditor not to initiate action under Section 138 of Negotiable Instruments Act, 1881, upon presentation of those Cheques on

various dates for encashment, the same were dishonoured with endorsements as “funds insufficientâ€​.

During the course of arguments, the Counsel for the Corporate Debtor has fairly admitted that the Corporate Debtor is not in a position to make the

payment of the outstanding debt and prayed to pass an appropriate order. Thus, there is a clear admission of the outstanding debt.

The documentary evidence which is placed on the case file is sufficient in order to ascertain the existence of a default on the part of the Corporate

Debtor. Therefore, in the light of the facts and circumstances recorded, and the legal position stated, the Financial Creditor has fulfilled all the

requirements of law, including the name of the Resolution Professional for appointment as IRP. Hence, the Application stands admitted, the

commencement of the Corporate Insolvency Resolution Process is ordered, which ordinarily shall get completed within 180 days, reckoning from the

day this order is passed.

Ms. Subramaniam Aneetha, is hereby appointed as IRP as has been proposed by the Financial Creditor. There is no disciplinary proceeding

pending against the IRP as reflects from Form-2. The IRP is directed to take charge of the Respondent Corporate Debtor's management immediately.

She is also directed to cause public announcement as prescribed under Section 15 of the I&B Code, 2016, within three days from the date the copy of

this order is received, and call for submissions of claim in the manner as prescribed.

The moratorium is hereby declared which shall have effect from the date of this Order till the completion of corporate insolvency resolution

process, for the purposes referred to in Section 14 of the I&B Code, 2016. It is hereby ordered to prohibit all of the following, namely:

(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 disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein;

(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 Securitisation 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 by or in the possession of the corporate debtor.

The supply of essential goods or services of the Corporate Debtor/Guarantor shall not be terminated or suspended or interrupted during

moratorium period. The provisions of Sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government.

The IRP shall comply with the provisions of Sections 13(2), 15, 17 & 18 of the I&B Code. The Directors of the Corporate Debtor, its promoters

or any person associated with the Management of the Corporate Debtor are/is directed to extend all assistance and cooperation to the IRP as

stipulated under Section 19, so that she could discharge her functions under Section 20 of the I&B Code, 2016.

The Financial Creditor and the Registry are also directed to send the copy of this Order with immediate effect to IRP, so that she could take

charge of the Corporate Debtor's assets etc., and make compliance with this Order as per the provisions of I&B Code, 2016. The address details of

the IRP are as follows:â€

Ms. Subramaniam Aneetha,

Reg. No. IBBI/IPA-001/IP-P00376/2017-18/10633

A-2, Sarada Apartments,

17/6, Sringeri Mutt Road, Mandaveli,

Chennai - 600 028

Email ID: aneethaca@gmail com

Mobile No. 98400 24178

The Registry is directed to communicate this Order to the Financial Creditor and the Corporate Debtor with immediate effect.

The Order is dictated and pronounced in the open Court in the presence of the Counsels for the Financial Creditor and Corporate Debtor.