In the matter of Mowkish Healthcare Solutions Private Limited

National Company Law Tribunal9 December 2024

CitationIB-536/ND/2024

Ratio decidendi

The rule this decision rests on

Where a financial creditor's application under Section 7 of the Insolvency and Bankruptcy Code, 2016 is ex parte and unopposed, the Adjudicating Authority must still satisfy itself, on the material on record, that a financial debt was disbursed and that a default in its payment has occurred; where the agreement itself makes the entire amount repayable upon non-payment of due interest and the record shows that default, the default is established. Where the Adjudicating Authority finds that the application under Section 7 is complete, that no reply has been filed to oppose it, and that no disciplinary proceedings are pending against the proposed Resolution Professional as declared in the consent form, the requirements of Section 7(3) and 7(5) of the Code are satisfied and the application must be admitted under Section 7(5)(a).

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE NATIONAL COMPANY LAW TRIBUNAL NEW DELHI BENCH (COURT – II) Item No. 202 IB-536/ND/2024 IN THE MATTER OF: Dickey Alternative Investment Trust Acting 1105, 11th Floor, Indra Prakash Building, 21 Barakhamba Road, New Delhi- 110048 … Applicant/ Financial Creditor Versus Mowkish Healthcare Solutions Private Limited Godown Kh.no.445, GF Bakshi farm Road Ghitorni, Near farm No. 34, South West Delhi, New Delhi- 110048 … Respondent/ Corporate Debtor

Under Section: 7 of IBC, 2016 Order delivered on 09.12.2024 CORAM: SH. ASHOK KUMAR BHARDWAJ, HON’BLE MEMBER (J) SH. SUBRATA KUMAR DASH, HON’BLE MEMBER (T)

PRESENT: For the FC : Adv. Amar Sir, Adv. Aditya Gauri, Adv. Damini Srestha, Adv. Anant Jain For the Respondent : None Hearing Through: VC and Physical (Hybrid) Mode ORAL ORDER As the present petition has been preferred under Section 7 of IBC, 2016 for commencement of CIRP qua the Corporate Debtor, despite service of notice no one appeared on behalf of the Corporate Debtor/Respondent. In terms of the order dated 03.12.2024 we directed that the matter should proceed ex-parte. The order dated 03.12.2024 reads thus:-

CP(IB)-536/ND/2024 Dickey Alternative Investment Trust Acting Vs. Mowkish Healthcare Solutions Private Limited “We issued the notice to the Corporate Debtor on 03.09.2024 and again on 09.10.2024. The Creditor has filed the affidavit of service of notice upon the Corporate Debtor. There is no appearance on the behalf of the Corporate Debtor despite service of notice. In the wake, the proceedings qua the Corporate Debtor are set ex parte. Let the application be listed for ex parte hearing on 09.12.2024.”

2. During the course of hearing Ld. Counsel for the Applicant could draw our attention to page 116 to 122 of the paper book to show the disbursement of amount of debt to the Corporate Debtor. In his submission the default was committed by the Corporate Debtor on 30.09.2022 when the amount with the interest due on the OCDs was not paid. To establish the default, the Ld. Counsel for the Applicant could draw our attention to debenture subscription agreement dated 21.09.2020. According to him in the terms of the agreement in the event of failure of the Corporate Debtor to pay the due interest, the entire amount of proceeding was repayable and a default occurred. Clause 5 and 5.1 and 5.2 of the agreement reads thus:-

CP(IB)-536/ND/2024 Dickey Alternative Investment Trust Acting Vs. Mowkish Healthcare Solutions Private Limited

3. Apparently there is sufficient evidence on record to indicate the disbursement of amount of debt and default in payment of the same. In terms of the provisions of Section 7(5) of IBC, 2016, while taking a decision regarding admission/rejection of an application preferred under Section 7(1) of the Code, we need to satisfy ourselves that the default had occurred and the application under sub-section (2) is complete and there is no proceeding pending against the proposed Resolution Professional. If such conditions are satisfied, we may order admission of the application and commencement of CIRP in terms of provisions of Section 7(6) of the Code.

4. From the agreement (ibid) it is clear that the Corporate Debtor has committed default. We do not find any deficiency in the application. No reply could be filed on behalf of the Corporate Debtor to oppose the application. No one is present on its behalf today. The Applicant has filed Form-2 (consent) of the Resolution Professional. The Resolution Professional has declared that no disciplinary proceedings are pending against him. The relevant excerpt of the declaration made by the Resolution Professional are pending against him reads thus: “(iv) certify that there are no disciplinary proceedings pending against the firm with the Board or IPA of Institute of Cost Accountants of India.”

5. From the aforementioned it is clear that the requirements of Section 7 (3) and (5) of IBC, 2016 are satisfied. Thus, we are left with no option but to admit the application. Ordered accordingly.

CP(IB)-536/ND/2024 Dickey Alternative Investment Trust Acting Vs. Mowkish Healthcare Solutions Private Limited

6. In the wake, moratorium provided under Section 14 of IBC, 2016 is declared qua the CD and as a necessary consequence thereof the following prohibitions are imposed, which must be followed by all and sundry: (a) The institution of suits or continuation of pending suits or proceedings against the Respondent 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 Respondent 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 Respondent in respect of its property including any action under the Securitization and 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 Respondent.

7. As proposed by the Petitioner Mr. Praveen Kumar Agrawal, having Registration IBBI/IPA-002/IP-N00700/2018-19/12348 is appointed as IRP, subject to the condition that no disciplinary proceeding is pending against him and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order.

8. Mr. Praveen Kumar Agrawal shall take charge of the CIRP of the Corporate Debtor with immediate effect and would take steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016 read with extended

CP(IB)-536/ND/2024 Dickey Alternative Investment Trust Acting Vs. Mowkish Healthcare Solutions Private Limited provisions of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 9. The Petitioner is directed to deposit Rs. 2,00,000/- only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor. 10. A copy of this Order shall immediately be communicated by the Registry/Court Officer of this Tribunal to the Petitioner /Financial Creditor, the Respondent/Corporate Debtor and the IRP mentioned above. 11. In addition, a copy of this Order shall also be forwarded by the Registry/Court Officer of this Tribunal to the IBBI for their records.

Sd/- Sd/- (SUBRATA KUMAR DASH) (ASHOK KUMAR BHARDWAJ) MEMBER (T) MEMBER (J)

Iqraa Wasi/Nikhil

CP(IB)-536/ND/2024 Dickey Alternative Investment Trust Acting Vs. Mowkish Healthcare Solutions Private Limited

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