In the matter of Ganpati Hightech Communication Private Limited

IN THE NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH COURT-II KOLKATA CP (IB) No.64lKB12022 I.A. (I.B.C) No. 624lK812022 A petition uncler section 7 of the Insolvency ond Bonkruptcy Code, 2016. ln the matter of: State Bank of India ...Financial Oreditor Versus Ganpathi Hightech Communication Private Limited [CIN: U29248W82007PTC 1 19 5321 Corporale Debtor Date of pronouncement: 0310812023 Coram: Banerjee : Bidisha Member (Judicial) Joshi : Balraj Member (Technical) Appearances (through video conferencing): Creditor For the Financial : Mr. Uttiyo Mallick, Advocate : Ms. Vedika Sureka, Advocate ORDER Per Balraj Joshi, Member (Technical) 1. This Court convened through hybrid mode. 2. This is a Company Petition filed under section 7 of the Insolvency and Bar,kruptcy Code. 2016 by State Bank of India, represented by Shri Kaushik Das, authorized vitle a Letter of Ar.rthorization dated 1 0.08.202 I I seeking to initiate Corporate Insolvency Resolution Process ("CIRP")

1 Page 27 of the Petition

KOLKATA BENCH (couRT-rr) SBI v. Ganpathi Hightech Communication pvt Ltd CP (lB) No.64/K8t2022 IA (lB) No.624lKBl2022 against Ganpathi Hightech communication private Limited ("corporate Debtor"). 3. It is submitted that Part -l of this petition contains particulars of the Financial Creditor. Part-II of this petition contains parliculars of the Corporate Debtor. Parl - III contains particulars of the proposed Interinr Resolution Professional.

4. Paft -lV of the Petition contains details of Financial debt for an amount of Rs. 36,57,13,618.781- (Rupees Thirty-Six crores Fifty-Seven Lakhs Thirteen Thousand Six Hundred Eighteen and Seventy-Eight paise only) including interest as on 3 1.08.2021.

5. The corporate Debtor was incorporated on 12 october 2007, having CIN: u29248w82007PTC119532. under the companies Act, 1956. [t,s registered office is at P-70, c.l.T Road Schen-re-vl M, Kolkata-700054, west Bengal. Therefore, this Bench has jurisdiction to deal with this petition. 6. The present petition was filed on 7 December, 2o2l before this Adjudicating Authority on the ground that the corporate Debtor has defaulted in niaking a payment of a sum of Rs. 36,57,13,61g.7g1- (Rupees Thirty-Six crores Fifty-Seven Lakhs Thirteen Thousand Six Hundred Eighteen and Seventy-Eight paise only) including interest as on 3 1 .08.2021.

submission of leorned counsel uppearingfor the Financial Creditor 7. The learned counsel submitted that in or around the year 2011. the Corporate Debtor had approached the Financial Clreditor lbr ayailing crec-lit facilities amounting to Rs. 1i Crore. Accordingly, the Financial Creclitor sanctioned the credit facilities of Cash Credit amounting to Rs. g Crore and Letter of credit for Rs. 5 crore vide Letter of Arrangement dated

KOLKATA BENCH (couRT-il) SBI v. Ganpathi Hightech Communication pvt Ltd CP (lB) No.64/KB,12022 IA (lB) No.624lKBl2022 26.09.2011.2 Subsequently an Agreement of Loan cum Hypothecation Agreenrent dated 26.09.20113 was executed between thern with respect to a sanction limit of 13 crore. consent clausea was also executed by the Corporate Debtor in favour of the Financial Creditor whereby it is stated by the corporate Debtor that it agrees and gives consent for disclosure by the Financial Creditor of inforn'ration and data relating to it, of the credit facility availed/to be availed by it. obligations assumecl/to be assumed in relatior.r thereto and default. if an1,. committed by it. in clischarge thereol. 8. The Ld. Counsel submitted that in order to secllre the said credit facilities, the Directors of the corporate Debtor namely Sanjay Kumar Agarwal and Ayush Agarwal stood as personal guarantors vide two separate Deeds of Guarantees, both dated 26.09.2011. one Anand Kumar Agarwal and Asha Agarwal also stood as personal guarantors and to that effect a Deed of Guarantee dated 26.09.20116 was executed. 9. Thereafter, Ekdant Ispat pvt. Ltd. of which Mr. Ayush Agarwal is also a Director. in their board meeting held on 26.09.2011 accepted the terms and cor.rditions of the loan granted by the Financial Creditor and resolvecl to extend its Corporate Guarantee to the Financial Creditor fbr the iimits anctioned only to the extent of its immovable property vide a Deed of Guarantee dated 26.09 .2Ol I .7 10' The Ld. Counsel further submitted that the Corporate Debtor filed Form No. B dated 08.1 I .201 1 with the RoC, West Bengal in order to secure the credit

2 ArtnexLtre-H, Pages 151 to 161 of the petition 3 Annexure-t, Pages 162 to 173 of the petition 4 Page 431-432 of the petition 5 Annexure-J, Pages 174-1g0 of the petiiion; Annexure_K, Pages 181-188 of the Petition 6 Annexure-L, Pages 199-1gS of the petition 7 Annexure-M, Pages 196-202 of the petition

Page 3 of l2

KOLKATA BENCH (couRT-il) SBI v. Ganpathi Hightech Communication pvt Ltd CP (lB) No.61lKBl2022 IA (lB) No.624tKBt2022 limit of Rs.l3 crore and such creation of lstcharge was acknowledged by the RoC, West Bengal.

1 1. The Corporate Guarantor on 08.11.2011 deposited the title deed with the Financial Creditor with intent to create an equitable mortgage of their immovable property as a security for the mortgaged debt due and payable to the Financial Creditor.

12. Subsequently, the corporate Debtor in or about the year 2013- once again approached the Financial Creditor to ar,'ail credit facilities amounting to Rs. 11.50 Crores to which the Financial Creditor sanctioned the creclit lacilities in respect of cash credit for Rs. 8 crores and working capital Term Loan for Rs. 3.5 Crores vide a Letter of Arrangement dated 18.05.2013. Pursuant to the sanction letter dated 18.05.2013, a supplemental agreement of Loan cum Hypothecation dated 18.05.2013 was executed by and between the Corporate Debtor and the Financial Creditor. Consent Clause was executed by the Corporate Debtor and the Personal Guarantors in favour of the Financial creditor. The said credit facilities were repayable on demand. 1 3. The said credit facilities were again secured by Personal Guarantors namelv Sanjay, Kumar Agarwal, Ayush Agarwal. Anand Kumar Agarrval and Asha Agarwal vide separate Deeds of Guarantee dated 18.05.2013 a1d Corporate Guarantee was given by M/s Ekdant Ispat pvt Ltd subsequent to a Board Meeting held by them on 18.05.2013 vide a Deed of Guarantee dated 18.05.2013. 14. The corporate Debtor had again filed Form No. g dated 19.05,2013 with the RoC, West Bengal in order to secure the credit limit of Rs.13.50 Crore and such creation of I't charge was acknowledged by the Roc, west Bengal. 15. The Corporate Debtor failed and neglected to maintain its accounts with the Financial Creditor and as a result. the accounts of the Corporate Debtor u,ere

Page 4 of l2

KOLKATA BENCH (couRT-rr) SBI v. Ganpathi Hightech Communication pvt Ltrl CP (lB) No.61tKBl2022 lA (lB) No.621tKBt20Z2 declared as Non-perfbrming Assers on 2g.10.2013 and 01.11.2013 respectively. 16. Thereafter a Demand Notice under Section 13(2) read with Section l3(3) of the SARFAESI Act, 2002 dated 13.11.2013 was issued by the Financial creditor for repaying the dues but the corporate Debtors took no steps to liquidate the outstanding dues failing which the Financial Creditor was constrained to take possession by a notice dated 08.01.2018 under Section 13(4) of the SARFAESI Ac| 2002. 17' Subsequently. the Finar"rcial Creditor had once again issuecl a Dernand Notice dated 1 8-12.2014 through irs Advocate but the Corporatc Debtor again did not take any steps for repaying the same. 18. Thereafter the Financial Creditor on27.03.2015 filed an application under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 being o.A. No. 242 of 2015 which is still pending befbre the Learned DRT-Ill, Kolkata. l9' The Financial Creditor has placed the following documents on record which includes: a' A copy of tlie Letter of Authorization alongwith the copr of'the Statc Ba,k of India General Regulatiors. r955 [Annexure A h\pgs.27- 43 of the Company petitionl b. copies of Memorandum of Deposit of Titre Deeds and Memorandum related to Deposit of Title Deeds for creation of charge for Term Loan/overail Limit [Annexure E @pgs. 49-135 of the Company petitionl c. Copies of Certificate of Registration of charge issr-red by Registrar of Companies (ROC) [Annexure F @ Pgs. 136-147 of the Company Petitionl

Page 5 of l2

KOLKATA BENCH (couRT-rr) SBI v. Ganpathi Hightech Communication pvt Ltd CP (lB) No.64tKBt2022 IA (lB) No.624/K8t2022 d. Copies of the orders passed by the Ld.Debt Recovery 'fribLrnal _ III. Kolkata in O.A. No. 2.12 of lCtl5 (Stare Bank of India -vs- M/s. Ganpati Hightech communication pvt Ltd. & ors [Annexure G @, Pg. 148 to 150 of the Company petitionl e. copies of the Letter of Arrangement of credit facilities dated, 26 September,20ll and 1 8 May, 201 3 issued by State Bank of india in favour of Ganpati Hightech Communication private Limited [Annexure H @ Pg. 151-16l of the company petition] and fAnnexure N @ Pg. 203-ZlS of the Company petition] f. copy of of Agreernent Loar.r clrnr Hypothecatio, datecl 26 September. 2011 a,d Supple,re,tar Agreement of Loa, c,r.r.r Hypothecation dated 18 May, 2013 executed by Ganpati Hightcch communication Private Limited in favour of State Bank of lndia [Annexure | @ Pg. l|z-r73 of the company petition] and [Annexure O @ Pg. 216-22l of the Company petition] g. copies of Guarantee Agreements dated 26.09.2ol1 [Annexu re J @, Pgs. 174-180 of the company petitionl; [Annexure K @ pgs. rgl- 188 of the company petitionl; pgs. [AnnexureL @ 1g9-r95 of the company Petitionl and fAnnexure M @ pgs. 196-202 of the Company Petition] lr' copies of Guarantee Agreements dated 1 g.05.201 3 fAnnexu re p @). Pgs.222-228 of the Company petitionl; [Annexure e @,pgs.229_ 235 of the Company Petitionl; [Annexure R @ pgs.236-240 of the company Petitionl; s pgs. fAnnexure @ z4r-247 of the company Petitionl and fAnnexure S @ pgs. z4g-zss of the Company Petitionl i. A copy of letter of confirmation for extension of ,rorlgage by deposit of title deeds covering enhanced limit and/or creation of Page 6 of l2

KOLKATA BENCH (couRT-rr) SBI v. GanpathiHightech Communication pvt Ltd CP (lB) No.64lKBl2022 IA (lB) No.624/KB,12022 equitable mortgage on additional property for securing the existing lirnits alid/or enhanced lirnits and additional facilities ciatecl 2i May.2013 [Annexure U @ pgs. 256-261 of the compan1,. petition] j. A copy of loan recall notice under Section r3(2) of the Secruritization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 dated 13 November,20l3 [Annexure EE @ pgs. 439-4 47 of the company Petitionl k. A copy of possession notice under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act.2002 dated 8 .lanuar1,20l5 fAnnexure FF @ pgs. 11g to 458 of the Company petitionl L A copy of the demand notice dated 1 g Decembe r,2or4 [Annexure GG @ Pgs. 459 to 465 of the Company peritionl 20. The Financial creditor has proposed the name of Mr. Aditya Kumar Tibrewal, registration number IBBI/IPA-001/lp-p007 4312017_ 2018 I 1 1249, as the Interim Resolution Professional of the Corporate Debtor. The proposed Interim Resolution Professional has given his writte. communication in Form 2 as required under rule 9(l) of the Insolvency and Bankrr-rptcy [Application to Adjudicating Authority] Rures, 2016 along r,vith a copy of registration. 21. The Financial creditor on 24.06.2022 had filed an I.A. being I.A (l.B.c) No. 624iK812022 under Secrion 60(5) of the Insolvency ancl Ba,kruptcy code, 2016 readwith Rule 1 1 of the National company Law Tribunal Rules, 2076 for bringing on record the correct date of default which arises out of the final order/jr-rdgment dated 04.11.2019 passed by the Learned DRT_III. Kolkata. Being unaware about the said order, they had u,ro,gfully mentioned the date of default as 13.1r.2013 which should be 04. 12.2019 in Page 7 of t2

KOLKATA BENCH (couRT_rr) SBI v. Ganpathi Hightech Communication pvt Ltd CP (lB) No.61lKBt2022 IA (lB) No.624lKBt20Z2 view of the final order/judgment dated 04.ll.2ol9.By filing this IA, tlie Financial creditor has prayed before this Hon'ble Tribunal that the date of default be allowed to be mentioned as 04.12.2019. Iss ues 22. Iltherher the .final orcler/juclgment dotecl 01. I I .201 g tt,ould give rise lo cr ./resh couse of action so as to bring this petition under the period of' limitation? 23. I4thether it will be justifiable to allovt the Finctncial Creditor to place on record the .final order/judgment dated 04. I I .201 g crt lhis stugc of the proceedings'? Analysis and Findings 24. None appeared for the corporate Debtor despite giving se'eral opportr"u-rities and therefore was accordingll, set ex-parte r,icle order clatecj 30tl' March,2023. Heard the learned counsel appearing fbr the Financial Creditor and perused the records. 25. While referring the first issue. we refer to the judgment passed by the Hon'ble Supreme Court in Dena Bank v C. Shivakumar Reddy & Anr.s. relevant paragraphs of which are reproduced as hereunder:- " 113. Moreover, a judgment and/or decree for ntoney in favour of the Financial Creditor, passed by the DRT, or any other Tribunol or Court, or the issuance of a Certificute o.f Recovery in fatour qf the Fincrnciul Cretliktr, v,ot.tltl git,e rise to aJresh cuuse rl actionJbr the Financ:ial Ct.etlitrr. to initiate proceedings under Section 7 of the IBC .fttr initiation of the Corporare Insorvency Resorution proces.s, v,ilhin three years ./rom the tlate of the jttdgment and/or 8 2021 OnLine SC 543 decided on 04.08.2021 "SCC Page 8 of l2

KOLKATA BENCH (couRT-rr) SBI v. Ganpathi Hightech Communication pvt Ltd CP (lB) No.64lKBl2022 lA (lB) No.624lKBl2022 decree or within three years from the date of issuance o.f the Certificate of Recovery, if the dues of the Corporate Debtor to the Financial Debtor, under the judgment and/or decree and/or in terms of the Certificate of Recovery, or any pcfft Ihereof rentainetl unpuid. " 26. Now ref-erring to the secoud issue, para 91 of'the judgrrent in Dena Bank v C. Shivakumar Reddy & Anr. (supra), shall be taken into consideration. as reproduced hereunder: " 9 I. On a careful reading of the provisions of the IBC and in particular the provisions of Section 7(2) to (5) of the IBC read with the 201 6 Adjudicating Authorily Rules' there is no bar to the filing of docuntents at any time until a.final ortler either admitting or dismissing the application has been pas,sed. " In view of the above .judgrrent r.r,e allor,v the applicatio, bein_u I.A.(I.B.c)No.624l(KB)tz\zz filed by the Applica,t fbr mentioning the date of default as 04.12.2019. while perusing page 322 of the present petition which is tlie Balance Sheet for the FY 2012-2013, it is reflected thereto under the head ,Short Term Borrowings' that the corporate Debtor had acknowledged regarding Secured Loan availed from the Financial creditor. Hence, it is clear that the petition has been filed within the period of limitation i.e., within three years lrom the date of default and it is established that there was a debt, which is more than the Threshold value given in Section 4 of the cocle ancl r,vhich the Corporate Debtor has defarilted to repa1,. 27. In view of the above observations, this Adjudicating Authority is satisfled that the instant petition is complete in all respects and should be udmittecl.

Page 9 of l2

IN TIIE NATIONAL COMPANY LAW-TRIBUNAL KOLKA'TA BENCTI (couRT-rr) SBI v. Ganpathi Hightech r Communication pvt Ltd CP (IB) No.6ilKBt2022 IA (IB) No.624tKBt2022 28. In the light of the above facts and circumstances, it is, hereby ordered as follows:- a. The application is complete as required in law. The disbursement of the debt for a time varue of money is estabrished & is crear that the corporate Debtor has defaurted on repayment of loan in terms of the agreements entered into with the Financiar credit.r. b. Tlie application bearing Cp (IB) tvo. 64/KIt/2022 flled by State Bank of India, the Financial Creditor, under section 7 of the code read with rule 4(r ) of the Insolvency & Bankruptcy (Apprication to Ad.iudicating Authority) Rules. 2016 for initiating crRp against Ganpathi Hightech Communication private Limitecr, the corporate Debtor, is odmitted. c. There shall be a moratorium under section 14 of the IBC 2016. d. The moratoriurn srrail have effect from the date of this order tiil the completion of the crRp or untir this Ad.jLrdicating Authorirr approves the resolution plan under sub-section (1) of sectio,3l ,1. the IBC or passes an order for liquidation of corporate Debtor under section 33 of the IBC, as the case may be. e. Public announcement of the cIRp shall be made immediatery as specified under section 13 of the code read with reguration 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate persons) Regulations, 2016. Mr. Aditya Kumar Tibrewal, registration number IBBI/lpA_ 0 0 1 /l P-P00 7 43 I 20 1 7 -20 r g I r 1 2 49. e m a i r : a rt i tya ti b rera r grn a i r. corn is hereby appointed as Interint Resolution prof-essional (lRp) ol.the corporate Debtor to carry out the functions as per the Code subject to submission of a varid Authorisation of Assignnrent in terms of Page I0 of l2

IN THE NATIONAL COMPANY LAW TRIBUNAI, KOLKATA BENCI.I (couRl-_rr) SBI v. Ganpathi Hightech Cornrnunication pvt Ltrl CP (IB) No.64/K8t2022 IA (IB) No.624/KB/2022 regulation 7 A of trie Insolvency and Bankruptcy Board of India (Insolvency Professional) Regurations, 201 6. The fee payabre to iRp or the RP, as the case may be, shall be compliant with such Regulations, circurars and Directions as may be issued by the Insolve,cy & Ba,krr-rptcy Board of India (IBBI). The IRp sriail carry out his functions as contemprated by sections 15, 17, rg, 19. 20 and 21 of the Code. t ( s ) r' Dr-rring the clRP periocl. the rranage ment of the c.rpor.ate I)ebt.r shall vest in the IRp or the Rp, as the case may be, in terms of section 17 of the IBC. The officers and managers of the corpor.ate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRp within one week fiom the date of receipt of this order, in default of which coercive steps wiil follow. There shalr be no future opportunities in this regard. h. The Interim Resoh-rtion professio,al is expected to take fuil charge of the corporate Debtor, its assets and its documents witrrout any delay r'vhatsoever. He is also free to take police assistarce i, t,is regard. and this court herebl, directs the concerne cl p.rice Authorities to render alr assistance as may be required by the Interim Resolution Professional in this regard. The IRP/RP shall submit to this Adjudicating Authority periodical rcport with regard to the progress of the ClRp in respect of the Corporate Debtor. j. The Financial creditor shall deposit a sum of Rs 300000/_ (Rupees Three Lakh onty) with the IRp to meet the expenses arising out of issuing pLrblic notice a.d inviting craims. These experscs arc subiect to approval by the Conrmittee o1-Creclitors (CoC).

ll Page of12

KOLKATA BENCH (couRT-rr) SBI v. Ganpathi Hightech Communication Prt l,td CP (lB) No.6.l/K8/2022 lA (l B) No. 624lKtrt2022 k. In terms of section 7(5)(a) of the code, court officer of this court is hereby directed to communicate this order to the Financial creditor, the corporate Debtor and the IRp by Speed post, emailand whatsApp immediately, and in any case, not later than two days from the date of this Order. l. Additionally, the Financial creditor shall serve a copy of this order on the IRP and on the Registrar of companies, west Bengar, by ail available means for updating the Master Data of the corporate Debtor. The said Registrar of Conrpanies shall send a cenrplilpcc report in this regard to the Registry of this Court witliin seven clavs from the date of receipt of a copy of this order. 29. ln view of the above observations, I.A.(I.B.c.)No. 624/KB/2022 stands disposed of. 30. CP (IB) No. 64lKBtZ0Z2 to come up :.'fo. filing the periodical report. A 31. certified copy of this order may be issued, if applied for, upon compliance w,ith all reqr_risite tbrmalities.

.r- (Bara; Joshi) 6iaisna Banerjee) Member (Technical) Member (Judicial) This order is pronounced on the 3'd day of August,2023.

(l:"1. LR.4)