In the matter of Lumex Resources Private Limited

In the matter of; An application under Section 7 of the Insolvency & Bankruptcy Code, 2016 tead with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 20L6; And In the matter of; NISHARANI IVIAHAPATRA, residing at 104, Vasantham, Sudarshan Nagar, Seri Lingampally, Hy derubad-500 0 1 9; ... Financial Creditor Versus LUMEX RESOURCES PRfVATE LIMITED, a company incorporated under the provisions of the Companies Act, 2013 havng its registered office at Plot No. DCB- 108, DLF Cyber city, Patia, Bhubaneswar, Khordha, Odisha- 751026. ... Corporate Debtor

Coram: Shri Rajasekhar V.K. Member (Judicial) Shri Satya Ranjan Prasad : Member (Technical) Appearances (through video conferencing) For Petitioner (s) : Mr. Ratnanko Banerji, Sr. Advocate Mr. Patita PabanBishwal, Advocate Mr. Shaunak Mitra, Advocate For Respondent (s) Mr. Shyam Sundar Sonthalia, CMA Order reserved on t13.09.2021 Order pronounced on: 08.10.2021

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IN TIIE NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CB12020 ht res: CIW of Lumex Resources Pvt. Ltd.

ORDER Per: Rajasekhar V.K. Member (ludicial) 1. The Court convened by video conference. 2. This application under Section 7 of Insolvency and Bankruptcy Code,20t6 Read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 20t6, has been filed by Nisharani Mahapatra (hereinafter referred to as the Financial Creditor), thereby seeking initiation of Corporate Insolvency Resolution Process (CIRP) in a respect of Lumex Resources Private Limited, company incorporated under the provisions of the Companies Act, 2}L3havng its registered office at Plot No. DCB- 108, DLF Cyber city, Patia, Bhubaneswar, Khordha, Odisha-75 1026, CIN :. U5 1 909OR20 1 9PTC03 t3 69 (hereinafter referred as the Corporate Debtor). 3. It is submitted in the Petition Part IV, that Financial Creditor had disbursed Loan amounting to an agleement sum of <5.50 Crore (Rupees Five Crore Fifty Lakh only) to the Corporate Debtor in several tranches and same was acknowledged and accepted by the Board of the Corporate Debtor.

4. The Financial Creditor had entered into and executed aLoan Agreement with the Corporate Debtor on November L,2019 and it was recorded and agteed that the Corporate Debtor would rcpay the entire amount of <5,50,00,000/- together with interest thereon @ 45% per annum to the Financial Creditor as per the terms and conditions of the Loan Agteement. (Annexure-H to the petition) 5. It is stated in the petition that the Corporate Debtor in discharge of its liability issued t2 wdated cheques on account of monthly interest for <20,62,500/- each in favor of the Financial Creditor and also issued an IN THE NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CB/2020 In res: CIW of Lumex Resources Pvt, Ltd, undated cheque for the principal sum of { 5,50,00,000/- (Annexure-I to the petition). 6. It is further stated that, it was mentioned in the Loan Agreement, if any default in making payment by the Corporate Debtor of monthly interest if payment for two consecutive months would constitute a "defavlt" arrd such a default arises, the principal outstanding would become due immediately on the date of such default.

7. It is stated that the Corporate Debtor failed and neglected to make payment of the monthly interest amounts in terms of the Loan Agreement and subsequently the Corporate Debtor had proposed to settle the loan along with interest by August2020 and issued Fresh Cheques for the clearance of the all outstanding and entered into an debt Settlement Agreement on L't July,2}Z}(Annexure-K to ttre petition).This agreement clearly records that there was default within the meaning of the Loan Agreement and IBC Code, 2016 and also that the date of default for the principal amount was 5th March, 2020.It was mentioned in Clause 6 of the Loan Agreement dated L't November,20l9 that there will be default if monthly interest is not paid for two consecutive months which was admitted by the Corporate Debtor vide its electronic matldated 10tr June,2020 (Annexure-J to the petition). 8. It is stated that the Fresh Cheques which were issued for the clearance of the all outstanding were dishonored upon presentation by the banker of the Corporate Debtor with Remarks that "FLINDS INSUFFICIENT". This clearly shows that the intention of Corporate Debtor is not to repay the amount that was given to them as Loan.

(Annexure-L to the petition). 9. It is further stated that the Financial Debt is admitted by the Corporate Debtor in his reply affidavit affirmed on22d December,2020. The Financial Debtor relied upon the following documents of the reply affidavit: a) Board Resolution dated 19th October,2}l9

IN THE NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CBl2020 In res; CIW of Lumex Resources Pvt. Ltd. b) Loan agreement dated l't Novernber,2}Lg c) The payment of intercst@ 1% per annum to the Financial Creditor as mentioned in the statement made by the Corporate Debtor (Annexure-B to the reply affidavit atpage l9). 10.It is further stated that the Corporate Debtor is in default of a sum of <5,50,00,000/- (Rupees Five Crore Fifty Lakhs only) along with accrued interest, @ 45o/o per annum, due calculated from 0t.0t.2020 t11129.02.2020, amounting to {34,30,000/- (Thfuty Four Lak*rs and Thirty Thousand only) which is described in the details of Bank Statement showing amounts disbursed and schedule containingparticulars of the outstanding dues of the corporate debtor as on 5fr March, 2020 (Annexure-F & M to the petition). ll.The Financial Creditor has also placed on record the Bank Statements showing the disbursement of loan to the Corporate Debtor (Annexure-F to the petition). It is stated that the Corporate Debtor farled to discharge its liability thereby compelling the Financial Creditor to file these proceedings.

12.It is further stated that Mr. Rajeev Lochan Das, Director of the Corporate Debtor has signed all the documents on behalf of the CorporuteDebtor and also signed the reply afftdavil 13. The Corporate Debtor was duly served with notice and was afforded opportunity to file reply. 14. The Corporate Debtor has filed its reply affidavit through one of its Directors, Mr. Rajeev Lochan Das. 15.In its reply afftdavit, the Corporate Debtor submitted the following: a) That the instant application is misconceived, manipulated and not maintainable and is result of gross violation of Section 10A of the IBC, 2016. The Financial Creditor has misled several facts and q

IN THE NA'|IONAL COMPANY LAW TRIBUNAL CUTIACK BENCH CP (IB) No. 180/CB12020 In res: CIRP of Lumex Resources Pvt. Ltd. calculated the outstanding due without taking into consideration the entire facts. It is filed just to take undue advantage of the provision of the IBC,20|6; b) That the interest rate is 45% per annum and the loan Transaction is baredunder the Odisha Money Lenders Act; c) That the Loan Agreement was executed without avthorization by the Corporate Debtor and is purportedly in violation of the provisions of the Companies Act, 2013 and there was earlier Loan Agreement directly with the partnership Firm; d) There are some adjustments of dues that are not taken into account by the Financial Creditor in calculating the defaulted amount and that the particulars of default given by the Financial Creditor arerLot correct; e) That the Financial Creditor has not given a sum of {30,00,000/- to the Corporate Debtor on L8tr November,20L9; 0 That the Financial Creditor has considercd a sum of t40,00,000/-paidby one Business Art Private Limited which was not apart of the LoanAgreement. 16.In response to the reply of the Corporate Debtor, the Financial Creditor submits the followings: a) That the rate of interest has been agreed both by the Financial Creditors and the Corporate Debtors which is evident from the Board Resolution and the loan agreement. The Corporate Debtor had also issued cheques for such interest amount and actttal payment of interest for fwo months. Odisha Money Lenders Act is no way applrcable in the proceedings under section 7 of the IBC. The IBC proceeding is not an action for recovery of money t. Section 238 of the IBC states that the code shall have effect

IN THE NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CB12020 In res: CIfuP of Lumex Resources Pvt. Ltd, notwithstanding anything inconsistent contained in any other law. A similar defence was raised arld rregated by the NCLT Kolkata Bench in Alliance Broadband Services Private Limited Vs ManthanBtoadband Services Private Limited. b) That the Loan Agteement was executed with proper avthoization and Mr. Rajeev Lochan Das, ManagtrLg Director of the Company is duly authorized and he himself signed the relevant Board Resolution, Loan Agleement and cheques issued in favor of Financial Creditors and the Board Resolution specifically records the Special Resolution was passed by the Corporate Debtor at the extra ordinary General meeting in this regard and the Financial Creditor is also not concerned with the internal dealings and affats of Corporate Debtor (under docffine of indoor management).

c) That from the Loan Agreement dated 1't November,2}L9 and Settlement Agreement dated L$ July, 2020, the Corporate Debtor has admitted the outstanding the amount after all' adjustments. Regarding the earlier Loan Agreements with the partnership firm, the same are irrelevant and are of no consequence since the agreement with parfirership firm stand superseded by the later agreement with the Corporate Debtor on L't November,20L9.

d) That the amount of (30,00,000/- which was paid to the Corporate Debtor by cash was duly acknowledgedby the Corporate Debtor in the Board Resolution dated 19.1'0.2019 and agreement dated 01.11.2019 and ematTs that the total amount of loan amount is {5,50,00,000/- which included the amount of t30,00,000/-. e) That the amount of {40,00,000/- which was initially paid by one Business Arts Private Limited was duly acknowledged by the q

TN THE NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CBl2020 In res: CIfuP of Lumex Resources PvL Ltd. Corporate Debtor in the Board Resolution dated 19.10.2019 and agreement dated 0L.LL.20L9 and the table at Annexure F in the reply affidavit atPage 56.

17. We have carefully gone through the pleadings filedby the parties. The reply submiued by the Corporate Debtor does not give any valid or plausible ground or feason for not making the payment. On the other hand, in the settlement agleemefit dated 1.'t July, 2020, Boatd Resolution dated Lgth October, zOLg, Loan Agteemen t dated L't Novemb et,2019, email dated 1 Oth June, 2020, admission in reply affrdav\t ttrat the Board resolution was rate was paid to the Financial Creditor, the corporate debtor has admitted default in payment of the dues of the petitioner (Financial Creditor). The corporate debtor, in discharge of its liability, also issued twelve undated cheques on account of monthly interest for 120,62,500/- each in favour of the Financial Creditor and also issued an undated cheque for the principal sum of <5,50,00,000/-. 18. We have also been gone through the contents of the Petition and each and every relevant portion of the pleadings filed by the Financial Creditor along with Annexures, and the reply of the Corporate Debtor. We are fully convinced that the loan amount of {5,50,00,000/- was duly advancedto the Corporate Debtor and the Corporate Debtor hadpaid interest at the agreed rute before making defaults of interest for the month of January and February, 2020 and there by the principal outstanding became due along with interest from 6th March,2020. The requisites of an application under section 7 of IBC are avarlable on record and duly proved. 19. The Financial Creditor has filed an application being Interim Application No. IA (IB) No. 43/CB/202L on 25n May, 2021, proposing the name of Mr. Suresh Chandra Pattanayak, Insolvenry Professional, holding IBBI Registration No. IBBI/IPA-02IIP-N00759/2018-19/12384, as the Interim Resolution Professional (IRP) of the Corporate Debtor instead of j_

IN TIIE NATIONAL COMPANY LAW TRIBUNAI- CUTT'ACK BENCH CP (IB) No. 180/CB12020 In res: CIW of Lumex Resources Pvt. Ltd. Mr. Sandip Mitra as Mr. Sandip Mitra has withdrawn his consent to act as an Interim Resolution Professional. Consent from Mr. Suresh Chandra Pattanayakto act as Interim Resolution Professional (IRP) of the Corporate Debtor has been obtained and submitted in Form-2 andthatno disciplinary proceedings are pending against him with the Board or IIIPICA. 20. We, therefore, consider it a fit case for admitting the petition, and for initiation of Corporate Insolvency Resolution Process in respect of the Corporate Debtor. 2l.It is, accordingly, hereby ordered as follows: - (a) The petition bearing CP (IB) No.180 / CB/2020 filed by Nisharani Mahapatra, the Financial Creditor, under section 7 of the IBC read with rule 4(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resolution Process (CIRP) against Lumex Resources Private Limited (CIN: U51909OR2019PTC03L369), the Corporate Debtor, is admitted. 1b) There shall be amoratorium under section 14 of the IBC, in tegard to the following: (i) 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, arbttration panel or other authorify; (ii) Transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (ii1) Any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its IN TI{E NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CBl2020 In res: CIRP of Lumex Resources Pvt Ltd, property including any action under the Securitisation and Reconsffuction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act, 2002; (1v) The recovery of any property by an owner or lessor where such properry is occupied by or in possession of the Corporate Debtor.

(c) Nonvithstandtngthe above, during the period of moratorium, - (1) The supply of essential goods or services to the corporute debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ir) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Cenffal Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case maybe. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (0 Mr. Suresh Chandra Pattanayak, Insolvency Professional, holding IBBI Registration No. IBBI/IPA-02IIP-N00759/2018-19/12384 having his address at GKV-38,Gati Krushna Villa, Tankapani Road,Brahmes w ar Bagh, Bhubaneswar, Khordha, Orissa 75 1 0 1 8, q

IN THE NATIONAL COMPANY LAW TRIBUNAL CUTTACK BENCH CP (IB) No. 180/CBl2020 In res: CIKP of Lumex Resources Pvt. Ltd. and possessing AFA Certificate No. AA2/L2384/02/231121/ 200713 valid vpto 23.1L.2021, is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the IBC. The feepayable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency & Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19,20 and 2L of the IBC. (e) During the CIRP period, themanagement of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers andmanagers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow. (h) The IRP/RP shall submit to this Adjudicating Authorfy quarterly reports with regard to the progress of the CIRP in respect of the Corporate Debtor. (i) The Financial Creditor shall deposit a sum of {2,00,000/- (Rupees two lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approvalby the Committee of Creditors (CoC). 0) In terms of section 7(5)(a) of the IBC, the Court Oflicer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporute Debtor and the IRP by Speed

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IN THE NATIONAL COMPANY LAW TRIBUNAL CUTTACi( BENCH CP (IB) No. 180/CB12020 In res: CIfuP of Lumex Resources Pvt Ltd, Post, email and WhatsApp immediately, and in any case, not later than two days from the date of this Order. Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Regisuar of Companies, Odisha,by all available means for updating the Master Data of the Corporate Debtor. The said Registrar of Companies shall send a compliance report in this regardto the Registry of this Court within seven days from the date of receipt of a copy of this order. (k) CP (IB) No.180/CB/202Oto come up on L5.tz.z)2Lfor progress report. (1) The IA (IB) No. 43/CB/2021 shall stand disposed of with the above direction.

a Ranian Prasad Rajasekhar Y.K. embpflTeghnigal) Member (Judicial)

Signed this, the 8'h day of October 2021.

Nishi Steno