In the matter of Bhilai Jaypee Cement Limited

NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH cP(IBl No. 5LlcBl2o24 (An Application under Section 9 of the Insoluency and Bankruptcg Code,2016 read with Rule 6 of the Insoluencg and Bankruptcy (Application to Adjudicating Autltonty ) Rules,2 0 1 6,) In the matter of: SIDDHGIRI HOLDINGS PRIVATE LIMITED Having Registered office at: BP-27 1,Ravi Nagar, Mughalsarai, Chandauli, Uttar Pradesh- 232 lO I Applicant/ Operational Creditor Vs. BHILAI JAYPEE CEMENT LIMITED Bhilai Jaypee Grinding Plant Bhilai Steel Plant Premises, Slag Road, Bhilai Chattisgarh-49O001 Bmail : s_ectl, de pf@jalyndia,co, in Respondent/ Corporate Debtor

Derp oF PRoNoUNcEMENT: 15. LO.2O25

CoRann: Dppp Cneupna Josnt (Muuren Juotcw) Barwenr Lel Mpple (Meuren Tecnrtcelf

ApppaRaucp: Fon ApplrcANT: Mn Jov Saua, Splton Apvocats Mn Snaswar KuwraR AcHaRve, Aovocetn MR AnHt.lppt AcaRwAL, ADvocATE Fon RnSpoNDENT: MR AsHrsH SHRIvASTAVA, SpwtoR Apvocetn Mn Snaxrr Spxnen, Aovocaro Mn Sanvpsn MpHna, Aovocaro Mn Auupewr CHeupHaRv, AovocATE 5d ea

NCLT Cuttecx BENcH CP(IB) No" sL/cB 12024

ORDER Pen: DBpp Cnawona .IeS_ru f4-EUEEB-|J]-. 1. The present Application has been filed on 17.O8.2024 by StnHctnt Holorlcs Pnrvatp Ltnnrrpp (hereinafter referred as "Applicant/Operational Creditor I OC") seeking to initiate Corporate Insolvency Resolution Process (hereinafter referred to as "CIRP") against Burl,eI Jayppp Cptuorqr Lrvtltpo (hereinafter called "the Respondent/Corporate Debtor/CD") by invoking the provisions of Section 9 of the Insolvency and Bankruptcy Code,2016 (hereinafter called "Code/IBC") read with Rule 6 of Insolvency & Bankruptcy (Application to adjudicating Authority) Rules, 2016 for an Operational Debt of Rs.45,40,22,840.95/- (Rupees Forty Five Crores Forty L,akhs Twenty Thousand Eight Hundred Forty Rupees and Ninety Five Paisa) and the first date of Default as stated in Part-lV of the application is 07.72.2021 2. The Applicant in its Application made the following averments that: a. The Respondent had been regularly purchasing coal from the Applicant for the operations of its Cement Plant and this present Application arises out of 3 transactions between both the parties, that arose out of 3 Purchase Orders i"e. P"O" Nr:. RMPO/41000351 18 ("Purchase order 1"), RMPO I 4100035358 ("Purchase order 2"\ and RMPO/4100036118 ("Purchase order 3") placed by the respondent on OL.ll.2O21, 15.11^2021 and 02.o2.2022. b. The Respondent through these 3 Purchase orders placed order for 2000 MT of coal each, amounting to 6000 MT and as per each of the purchase orders the payment in respect of each purchase order \/ere to be made by the respondent after 15 days of delivery of each order. Sa 3A -..----7 .--

NCLT CUTTACK BpNcH CP(IB) No. 5I/cB 12024 c. The Applicant in respect of three purchase orders has raised multiple invoices since 15.09.2021 till 18.O5"2022 which was accepted by the respondent without any demur or protest. The respondent has duly acknowledged its outstanding liability to the tune of Rs. 31,08,2L,256 as on 31"03.2023 vide its email dated 25.09.2023 and subsequently had made a payment of Rs.1,OO,OO,OO0/- on 27.12.2023 which is adjusted against the invoices raised prior to invoice no. SH/CND/212214331 dated 15"09.2021. The respondent failed to make any payment with respect to the invoices raised from L5.O9.2021 and on the date of this application a total amount of Rs.45,40,22,84O.951- i.e. Rs. 30,O8,21,256.0O (Principal) and Rs. 5,32,07,584.89 l- (lnterest 1 24%) is due and payable by the respondent with respect to all @ the invoices raised in pursuance of all the three purchase orders d. The Applicant raised the first invoice in respect to Purchase Order 1 vide invoice No. SH/CND/ 212214331 on 15.1 1 .2021 and completed delivery on 21.11.2021 and the amount became due and payable on 06.12.2021 and hence the first date of default is 07.12.2021. e. The Applicant has issued a Demand Notice u/s 8 in Form- 3 to the respondent on 22.06.2024 and the same was received by the respondent on 06.07.2024 but the respondent did not respond to the notice. 3. The Respondent in its reply raised the following contentions that: a" The present application has been filed with an intent of recovery and is in contravention with the objective of IBC as the respondent is a solvent company. b. The applicant has failed to provide any certificate from the financial institutions confirming non-payment of unpaid 3a Sa -Z

NCLT Cutlacx BENcH CP(IB) No. 5l1cB 12024 operational debt and the invoices, E-way bills, GSTR Forms, ledger book maintained by the applicant, bank statement of the applicant which are filed by the applicant cannot be hence the application is not in compliance with the requirement provided u/s 9(3)(c) making the application defective and incomplete. c. The applicant has not appended any record of default as mandatorily required under section 9(3)(d) of the code and Regulation 20 (1A) of IBBI (lnformation utilities) Regulation,2077 which is in light of the order dated O3.O4"2O23 issued by Registrar, NCLT and Circular No. IBBIlIUl79l2023 dated 16^06.2023 issued by IBBI. d. The affidavit verifying the application and the affidavit u/s 9(3)(b) of the code is defective as in the affidavitthe address of the deponent is stated to be in Chandauli, Uttar Pradesh whereas the affidavit has been notarized in Cuttack Odisha, which makes both the affidavits defective in nature^ e. The applicant has not furnished extracts of Form GSTR- 1 and GSTR-3B filed in terms of Rule 59(1) of the CGST Rules, 2Ol7 rather has filed only purported screenshots of the GST filing portal and the same does not qualify as requisite evidence in term of Regulation 28 of IBBI (lnsolvency Resolution of Corporate Person) Regulations,2O16" The said screenshots are also not accompanied by any certificate/affidavit under section 63 of BSA, 2023 which is sine qua non in regard to digital evidence" f. The applicant has appended selective pages of bank account statement and neither the statement does not contain any information that indicate the details of the accounts to which the said bank statement belongs, nor it contains the seal of the bank. The applicant has also failed to provide a certificate u/ s 63 of BSA,2O23 which is mandatory as the statements are internet generated copy. 3A (-\ 3A\ _

NCLT CUTTACK BENCH CP(IB) No. 51/CB 12024 g. The applicant has placed on record email communications between the parties but has not appended any certificate u/s 63 of BSA, 2023 as required under rules of evidence in support of the digital documents making it inadmissible before this Adj udicating Authority" h. The applicant has admitted the fact that the respondent has made payments in terms ol the invoices and hence there is no existence of default. 4. The Applicant in its rejoinder in addition to its averments in the application made the following submissions that: a" The requirement of NESL/lnformation utility certificate for ascertainment of default is not mandatory but only directory. The requirement of certificate from the bank certifying the bank account statement is also directory in nature and hence the defect is curable and in event of any direction from the Adjudicating Authority the same will be brought on record to cure the defect. b. GSTR- 1 along with corresponding GSTR-3B for the period from October 2O2l tili May 2022 has been placed on record along with the application as Annexure-7. c. The selective portions of the bank statements have been pla.ced on record to prevent the application from becoming u.nnecessarily bulky and to protect confidentiality of monetary transactions that does not pertain to the respondent but in case it is directed the entire bank statement of the applicant will be brought on record" d. There is no applicability of section 63 of BSA, 2023 in the present case since the existence of operational debt is admitted by the respondent. 9a 3a--?

NCLT CurrAcK Bpucn CP(IB) No" 5l/cB 12024 5. We have perused the documents brought on record and we have extensively heard Mr. Joy Saha, learned Senior Counsel and Mr. Shaswat Acharya, learned Counsel appearing for the applicant. We have heard Mr. Asish Srivastava, learned Senior Counsel appearing for the respondent" This is an application filed under section 9 by the applicant seeking to initiate Corporate Insolvency Resolution Process (CIRP) against the respondent for a default of Rs. Rs.45,40,22,84O.951-. 6, During perusal of the records, it was noticed that the applicant has pleaded that the first purchase order no.4100035118 was made on 01.17^2021 but there are 39 invoices placed before this Authority pertaining to purchase order no. 4100035118 which are dated from 05"09 .2021 till 30.09 .2021. The details of the invoices are as follows: Sl No Invoice No. Date of Amount Invoice 1. sH/cND 121,2214331 t5.o9.2021 43671 1.81 ) SHlCND 1212214337 16.o9.202t 424886.22 .). sH/cND 12t2214337 16"o9.2027 420016.87 4. sH/cND l2t22l 4360 17 .o9.202t 347811.25 5" sH/cND 1212214s74 18.09.2027 4t6817"00 6. sH/cND 121221437e t9.o9.2021 558863.12 7. sH/cND 1212214403 2t.o9.202r 347533.00 8. sH/cND 1212214404 27.O9.2021 349480.74 9. sH/cND l2t22l44Os 21.o9.2021 429338.21 10. sH/cND 12122144Oe 21.o9.2021 418764.75 11 sH/cND 1212214410 22"O9 "2027 421408.11 12. sH/cND 1212214411 22.O9 .2027 416817"00 13" sH/cND 12122144s3 24.O9.2021 4t9460.37 t4" sH/cND 12122 I 44ss 26.O9.2021 4\9460"37 15" sH/cND 12t2214463 26"O9.2027 410139.03 3a -7 6c

NCLT Cutrecx BENCH sl/cB CP(IB) No. 12024 16. sH/cND 1212214464 26.09.2021 475286"63 17" sH/cND 1212214473 27 "O9.2021 430590.33 18. sH/cND 1212214481 27 .O9.2021 433094.57 79. sH/cND 1212214483 27 .O9.202L 393722.34 20. sH/ cND 121221 448s 27 .O9.202t 4r5704.O1 21^ sH/cND 12t2214487 27 .O9.202r 43t703.32 22. sH/cND 12t2214488 28.O9.2021 479042.99 23. sH/cND 121221448e 28.O9.2027 478208"25 24. sH/ cND I 2122 I 4490 28.O9 .2027 434903.19 25" sH/cND 12122144e4 28.O9 .2021 426594.84 26. sH/cND 12L2214496 28.O9.2021 343915.76 27. sH/cND l2\22144e7 28.O9 .2021 4t8347.37 28. sH/cND 1212214498 28"O9.2027 477 \97 .O4 29. sH/ cND 12122 I 44ee 28.O9 .2021 430729.45 30" sH/cND l2t22l4sO3 28.O9.202r 420434.24 31. sH/cND 1212214504 29 "O9.2027 348506.87 32. sH/cND l2t22l4sos 29.O9.2027 353793.60 J o J a. sH/cND l2t22l 4sO7 29 "O9 "2021 505439"31 34. sH/cND l2122l4sO8 29.O9.2021 4t7657"75 35" sH/cND l2122l4soe 29 "O9.2021 434624.94 36. sH/cND l2t22l4s1O 29.O9.2027 435042.31 37. sH/cND l2t22l4st4 30.09.2021 346002.63 38" sH/cND 1212214st6 30.o9.2021 417790"87 39. sHlcND 1212214s2O 30.o9.2021 580149.r7 Total Amount { 1,63,85,983"63

7. As regards to theses invoices listed above it was found that the corresponding E-way bills were generated after the date of the purchase order and furthermore the respondent has also not raised any objections to the genuinity of these invoices. Albeit the fact no objection has been raised, this Adjudicating Authority cannot put a blind eye to ga

NCI,T Currecx Bpncn CP(IB) No. 51/CB 12024 the anomality of dates existing in these invoices and hence this Adjudicating Authority will deduct the invoices amounting to Rs. 1,63,85,983.63 to consider the threshold amount but it is noted that such deduction won't make any material change as the debt claimed to be in default is approximately Rs 45 crores" 8" ln Mobilox Innouations Priuate Limited u Kintsa Software Priuate Limited CIWL APPDAL NO. 9405 O.F 2017 the Hon'ble Apex Court at Para 25 had clearly laid down the point of determinations for the Adjudicating Authority while adjudicating an application luls 9 of the Code. Para 25 of the judgement is reproduced herein for brevity: 25. There.fore, the adjudicating authority, tuhen examining arl application under Sectioru 9 of the Act will haue to determine: (i) Whether there is q.n "operational debt" as defined exceeding Rs.I lakh? fSee Section 4 of the Act) (ii) Whether the documentqry evidence furnished utith the application shouts that the aforesqid debt is due and pagable and has not get been patd? And fiif) Whether there ls exlstence of a dispute between the parties or the record of the pendencg of a suit or arbltratlon proceeding Jiled before the receipt of the demand notlce of the unpaid operational debt in relation to such dispute? If anA one of the aforesaid coruditiorus is lacking, the application uould haue to be rejected. gd 3a2

NCLT Curracx BENCH CP(IB) No. sl/cB 12024 Apart from the aboue, the adjudicatirug authonty must follout the mandate of Section 9, as outlined aboue, arud in particular the marudate of Sectioru 9(5) of the Act, and admit or reject the application, as the case may be, dependi.ng upon the factors mentioned in Section 9(5) of the AcL 9. The only material change that has taken place since Mobilox (Supra) is that the threshold amount has been increased to Rs. 1 Crore from Rs. 1 Lakh vide legislative amendment, barring that other points of determination has remained intact. In the present case the applicant has averred that it has supplied coal to the respondent in pursuance of three purchase orders and has raised multiple invoices from 15.09 "2021 to 18.05.2022 with respect to coal delivered in pursuance to such purchase orders and the amount raised through these invoices along with interest is in default. 10. Upon perusal of the reply of the respondent and the arguments made by Mr. Asish Srivastav, learned senior counsel appearing for the respondent, it is found that the respondent in a nutshell has objected to this application on the following grounds: a" The present application is imitated with an intent of recovery instead of resolving insolvency of the respondent and the debt is not an operational debt as defined under section 5(21) of the Code. b. Defective affidavit on account of mismatch of address of the deponent and the place of notarrzation. c" Absence of Certificate of unpaid debt from the bank which maintains the account of the applicant. d. Absence of any proof of default issued by any information utility. gd

NCLT Cumecx Bnr*cn CP(IB) No. 5l/CB 12024 e. Absence of certificate uls 63 of BSA, 2023 along with email copies, internet generated bank statements, and copies of internet generated GSTR- 1 Forms, which makes them inadmissible. f. Appending selective portions of the Bank Statements in place of the entire bank statement evincing transactions with respondent" 11. Before we delve into the contentions raised by the parties. It is noted that no dispute, whatsoever, has been raised by the respondent in regard to the receipt of coal supplied by the applicant. The respondent has also neither disputed the genuinity of invoices brought on record by the applicant nor disputed the receipt of such invoices by it in its reply or oral submissions. The respondent has also neither disputed the existence of the debt or the quantum of debt which is stated in Part-IV of the application, instead, upon perusal of the reply it is noted that at Para 38 of its reply the Respondent has stated the following: 38. PART-M: The Coruteruts of Part-M of the captiorued application are matters of record arud merit no specific response except what ls specificallg denied by the corporate debtor herein. In the entire reply or in the oral submissions the respondent in no manner whatsoever has neither contended about the existence of debt and nor regard to the quantum of debt amount and in absence of any such contention this Adjudicating Authority finds no reason to doubt the debt amount stated by the applicant in Part-lV of the application. The respondent has not raised any contention on the issue of limitation as well and from the documents on record it is evident that the application is well within limitation. 3d (\\ 5d\ ,z

NCLT Cuttacx BENcH CP(IB) No. 5l/cB 12024 L2. The respondent has contended that the present application is liable to be dismissed as it is incomplete for the reason that the application does not contain certificate under 63 of BSA, 2023 in support of the email communication, internet bank statements and internet generated copy of Form GSTR- 1" It is noted that the email communication relied upon by the applicant to establish acknowledgement of outstanding debt is not the primary evidence evincing the existence of the debt and Porm GSTR- 1 is filed to corroborate the fact that supply of goods was indeed made and GST invoice was raised by the applicant in favor of the respondent, which is not disputed by the respondent. The existence of debt is clearly established by the copies of the invoices raised by the applicant and furthermore the acceptance of existence of debt on part of the respondent in its reply makes the contention of the respondent with regard to section 63 of BSA, 2023 untenable. In this regard reliance is also placed on the judgment of Hon'ble NCLAT in Pijush Banerjee as, IL & FS Financiq.l Seraices Limited in Compang Appeal @f) (Insolaencg) No.1383 of 2O22 INCLATI wherein the Hon'ble NCLAT has held that section 65 B Certificate under the Indian Evidence Act, 1872 (pari materia to section 63 of 8SA,2023) is not relevant while dealing with requirement of filing of a application under IBC. 13" The learned Senior counsel appearing for the respondent has strongly contended that non adherence to section 9(3)(c) and 9(3)(d) of the code by not appending certificate from the bank certifying the outst.anding unpaid debt and certificate from the infbrmation utility makes the application incomplete and is liable to be dismissed. In this regard learned senior counsel for the applicant placed reliance on Vijag Kumar Singhaniq. us. Bank of Baroda & Ors. reported in 2023 SCC OnLine NCLAT 2320 wherein it was held that Information Utility certificate is not mandatory for ascertainment of default of the CD but it is only directory in nature J e d, r) n !;d '?

NCLT Curtacx BENcH CP(IB) No. sl1cB 12024 Upon perusal of the verbatim of section 9(3)(c) of the code it is observed that the requirement of certificate of bank statement is qualified by the phrase 'if available' which is also the case for section 9(3)(d), which deals with certificate from information utility and hence in light of the judgement in Vijay Kumar Singhania (Supra) and the identical usage of the phrase 'if available' in both 9(3)(c) and 9(3)(d) makes section 9(3)(c) also directive. L4. As regards to the contention of difference in address of the deponent and place of notarrzation in the affidavit, it is observed that there is no requirement as such in law that any affidavit has to be notartzed by the deponent at the place of his residence where the deponent duly affixes his/her signature to affidavit in presence of the notary who is notarising the document, hence this argument of the respondent does not hold any water. 15. In light of the above observations, there is no dispute that there exist an 'operational debt' and 'default' of an amount beyond Rs. 1 Crore and there is no pre-existing dispute and all the conditions necessary under section 9 of the code are materially fulfilled and hence we are inclined to hold that there exists an outstanding operational debt, a default and accordingly the present Application bearing CP (IBC) No" 5LlCBl2024 under Section 9 of the Code read with Rule 6 of the insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2O16 for initiating CIRP of BHILAI JAYPEE CEMENT LIMITED is ALLOWED and the Corporate Debtor is 'ADMITTED'. L6. The Moratorium under section 14 of the Insolvency and Bankruptcy Code, 2016 is declared for prohibiting all the following in terms of section 14(1) of the Code - a. the institution of suits or continuation of pending suits or proceedings against the corporat-e debtor including execution of any judgment, decree, or order in any court of law, tribunal, arbitration panel or other authority; _3 6a --

NCLT Culracx BENCH CP(IB)No" 5tlcBl2o24 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 Securrtrzatronand Reconstruction of Financial Assets and Enforcement of Security Interest Act, 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" L7. The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process until this Adjudicating Authority approves the Resolution Plan under sub-section (1) of section 31 or passes an order for liquidation of Corporate Debtor under section 33 of the Insolvency & Bankruptcy Code, 2016. 18. As proposed by the applicant Mr. Ashutosh Khemani having registration no" IBBI/IPA-OO2|[P-NOLL77 l2O2L-2O221 L39O2 and Email Id: ashutosh.khemanr@grnail.com office at Office No" 1-C, 3rd Floor, Shyam Plaza, Pandri, Opp New Bus Stand, Raipur, Chattisgarh- 492OO1 is hereby appointed as Interim Resolution Professional (lRP) of the Corporate Applicant to carry out the functions as per the Code, subject to his possessing a valid Authorisation for Assignment (AFA) in terms of A of the Insolvency and Bankruptcy Board of India 7 (lnsolvency Professional) Regulations, 2076. 19. The IRP so appointed shall make a public announcement of initiation of Corporate Insolvency Resolution Process (CIRP) and call for submission of claims under Section 15 as required by section 13(1)(b) of the Code. 20. The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended, or interrupted 3* 3a

NCLT Cumecx Bpucn CP(IB) No. 5l/CB 12024 during the moratorium period. The corporate debtor to provide effective assistance to the IRP as and when he takes charge of the assets and management of the corporate debtor. 2L. The IRP shall perform all his functions as contemplated, interalia, by sections 17, 18,20 &,2I of the Code. It is further made clear that all personnel connected with Corporate Debtor, its Promoter or any other person associated with management of the Corporate Debtor are under legal obligation under section 19 of the Code extending every assistance and co-operation to the Interim Resolution Professional" Where any personnel of the Corporate Debtor, its Promoter or any other person required to assist or cooperate with IRP, do not assist or co-operate, the IRP is at liberty to make appropriate application to this Adjudicating Authority with a prayer for passing an appropriate order" 22. The IRP shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor'and manage the operations of the Corporate Debtor as a going concern as a part of obiigation imposed by section 20 of the Insolvency & Bankruptcy Code,2016" 23. The IRP/RP shall submit to this Adjudicating Authority periodical reports concerning the progress of the CIRP in respect of the Corporate Debtor. 24. The Financial Creditor shall deposit a sum of Rs.2,OO,OOO/- (Rupees TWo Lakhs only) with the within two weeks from the date of receipt of this order for the purpose of smooth conduct of Corporate Insolvency Resolution Process (CIRP) and IRP to file proof of receipt of such amount to this Adjudicating Authority along with First Progress Report.. Subsequently, IRP may raise further demands for Interim funds, which shall be provided as per Rules. 25. In terms of section 9(5)(i) of the Code, the Registry is hereby directed to communicate a copy of this order to the Financial Creditor, Corporate Debtor and to the Interim Resolution Professional and the concerned Registrar of Companies, within seven (7) working days and 3rl 6aZ

NCLT Cu'rteCx BENCH CP(IB) No" 5l/CB 12024 upload the same on website immediately after pronouncement of the order. 26. The IRP shall also serve a copy of this order to the various departments such as Income Tax, GST, State Commercial Tax, and Provident Fund etc. who are likely to have their claim against Corporate Debtor as well as to the trade unions/employee's associations so that they are informed of the initiating of CIRP against the Corporate Debtor timely. 27. The commencement of the Corporate Insolvency Resolution Process shall be effective from the date of this order. 2A" The Resolution Professional shall submit his periodic reports before this Adjudicating Authority as per rules/regulations. 29. CP (IBC) No. 5l lCBl2O24 stands ALLOWED. 3a 3d DEEP-ffi,JosHI BANW,4fuI LAL MEENA Member (Technicalf Member (Judicial!