In the matter of Sen Holding Private Limited

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 against Mr. Abhijit Sen being the director of the Principal Borrower and Personal Guarantor of the credit facilities availed by the Principal Borrower through agreement dated 20.12.200513. 5.13 Ld. Counsel further submits that since the Corporate Debtor being the Corporate Guarantor for loans obtained by Plastosen Limited has failed to make payments despite the order of LD. DRT-III, Kolkata dated 04.01.2022. Hence the instant application under Section 7 of the IBC, 2016. 6. Submission of Learned Counsel for the Corporate Debtor 6.1 Ld. Counsel submits that the Corporate Debtor, Sen Holding Private Limited, was never served with an advance copy of the Company Petition No. 46 of 2024 filed by the Financial Creditor. The registered address of the Corporate Debtor is 85, S.N Banerjee Road, Kolkata, West Bengal-700014, which was already in possession of the Financial Creditor. A court Receiver was appointed to take possession of the premises, including all systems, computers, servers and electronic equipment located therein. 6.2 Ld. Counsel submits that the Financial Creditor deliberately failed to apprise this Hon’ble Tribunal of the fact that the Corporate Debtor had no access to its 13 Annexure- H

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 registered office and continued to send communications and notices to the same address. As a result, no service could be completed effectively. This was a calculated move by the Financial Creditor to proceed ex-parte against the Corporate Debtor and suppress material facts from this Hon’ble Tribunal. 6.3 Ld. Counsel submits that the Corporate Debtor was unable to access its official email ID cs@senglobal.com, as the servers and electronic equipment required to access the email were within the registered office, which was under the possession of the financial creditor. The Financial Creditor, knowing this, maliciously continued to send communication via email without ensuring effective service. Further after the director of Corporate Debtor was apprised that on the said email security code will be received, we are able to file vakalatnama. As the director got access from the domain hosting, but only new email could be accessed. The previous data was unable to access. Also, it is pertinent to note that Section 95 of IBC application filed by the bank was served on another email of Mr. Abhijit Sen, Director of the Corporate Debtor, on which if they could have served the Company petition, the appearance would have been made and defended strongly.

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 6.4 Ld. Counsel submits that the Corporate Debtor has been vehemently contesting the fraudulent activities of the Bank. Even in proceedings before the Debt Recovery Tribunal (DRT), the Financial Creditor failed to serve advance copies of pleadings. Consequently, an order dated 09.10.2023, was passed ex-parte by the Ld. Recovery Officer in R.C No. 12 of 2022 (South Indian Bank Limited Vs M/s Plastosen Limited and Others), without the knowledge of the Corporate Debtor. The same was challenged immediately before the High Court of Calcutta being Case No- 4267 of 2023, the same is still pending. 6.5 Ld. Counsel submits that the Financial Creditor has fraudulently obtained an order by misrepresenting facts before the DRT. The Corporate Debtor is not a financial debtor but had merely provided its property as collateral security without any independent obligation to repay the outstanding dues. The only document available in this regard is a letter dated 20.12.2005, confirming the deposit of title deeds. Nowhere in this document is there any indication that the Corporate Debtor assumed liability for repayment upon default. Despite this, the Financial Creditor deceitfully pursued the claim against the Corporate Debtor, fully aware that it has no valid case under the IBC.

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 6.6 Ld. Counsel submits that the deliberate non-service of the Company Petition, suppression of material facts, and misrepresentation before the judicial forums clearly indicate the fraudulent intent of the Financial Creditor. The Financial Creditor is well aware that it has no legitimate claim as a Financial Creditor and is, therefore, attempting to abuse the legal process to unjustly enrich itself at the expense of the Corporate Debtor. 7. Analysis and Findings 8. This Adjudicating Authority has carefully considered the pleadings, submissions of the parties, and documents placed on record. The following issues arise for determination. I. Whether the Financial Creditor has established the existence of a financial debt and default in terms of Section 7 of the Insolvency and Bankruptcy Code, 2016? II. Whether the Corporate Debtor’s objections relating to alleged non-service, non-availability of the registered office, and claims of fraud or misrepresentation constitute valid grounds to reject a Section 7 application? and III. Whether the Applicant can be treated as a Financial Creditor under the IBC?

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 9. Existence of Financial Debt and Default I. The material on record clearly demonstrates that the Corporate Debtor executed a letter dated 20.12.2005, confirming the deposit of title deeds and thereby creating equitable mortgage over its immovable property to secure the credit facilities extended by the Financial Creditor to the Principal Borrower, Plastosen Ltd. Further, by the subsequent letter dated 02.02.2006, the Corporate Debtor extended security limit to ₹6,61,12,288/-. II. The Financial Creditor has placed on record the final order dated 04.01.2022 passed by the DRT-III, Kolkata in OA No. 45/2007, directing the defendants including the Corporate Debtor to pay ₹8,22,24,201/- with interest @ 17.5% p.a. from 20.04.2007 till realization. III. Non-payment within the 30-day period granted by the DRT results in default on 04.02.2022. The Information Utility record of NeSL further corroborates the default. Thus, the provisions of Section 7(3)(a) stand satisfied. 10. Objections relating to alleged non-service, non-availability of the registered office, and claims of fraud or misrepresentation

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 I. The Corporate Debtor’s plea of improper service does not extinguish the debt or default. The Corporate Debtor has already entered appearance and filed detailed objections. II. Allegations that the Financial Creditor deliberately sent notices to the registered office under possession of a Receiver remain unsupported. The Corporate Debtor was aware of multiple proceedings including Section 95 IBC proceedings against the Personal Guarantor and cannot clinically claim lack of knowledge. III. Allegations of fraud by the Financial Creditor cannot be adjudicated in a summary Section 7 proceeding. Without any stay of the DRT order, this Authority cannot disregard a final decree. 11. Determination of the Applicant status as a Financial Creditor under the Code. I. This Adjudicating Authority observes that since the Corporate Debtor had mortgaged its property and there are Decree and Recovery Certificate14 of DRT-Kolkata in favor of the Bank, hence the applicant should be considered as Financial Creditor of the Corporate Debtor.

14 Annexure- I

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 II. The legal position stands firmly settled by the judgment of 3 (three) bench judges of the Hon’ble Supreme Court in the matter of Kotak Mahindra Bank Limited Vs. A. Balakrishnan and Ors15 wherein it was held that a liability in respect of a claim arising out of a Recovery Certificate would be a "financial debt" within the meaning of Clause (8) of Section 5 of the IBC. Consequently, the holder of the Recovery Certificate would be a financial creditor within the meaning of Clause (7) of Section 5 of the IBC. The relevant extract of the aforesaid judgement is reproduced as under: “69. We have already hereinabove, done the exercise of considering the relevant provisions of the IBC afresh and come to a conclusion that a liability in respect of a claim arising out of a Recovery Certificate would be a "financial debt" within the meaning of Clause (8) of Section 5 of the IBC and a holder of the Recovery Certificate would be a "financial creditor" within the meaning of Clause (7) of Section 5 of the IBC. We have also held that a person would be entitled to initiate CIRP within a period of three years from the date on which the Recovery Certificate is issued.

15 Civil Appeal No. 689 of 2021 (2022) 9 SCC 186

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 ****************************************** 77. From the plain and simple interpretation of the words used in Sub-section (22A) of Section 19 of the Debt Recovery Act, it would be amply clear that the Legislature provided that for the purposes of winding-up proceedings against a Company, etc., a Recovery Certificate issued by the Presiding Officer Under Sub-section (22) of Section 19 of the Debt Recovery Act shall be deemed to be a decree or order of the Court. It is thus clear that once a Recovery Certificate is issued by the Presiding Officer Under Sub-section (22) of Section 19 of the Debt Recovery Act, in view of Sub-section (22A) of Section 19 of the Debt Recovery Act it will be deemed to be a decree or order of the Court for the purposes of initiation of winding-up proceedings of a Company, etc. However, there is nothing in Sub-section (22A) of Section 19 of the Debt Recovery Act to imply that the Legislature intended to restrict the use of the Recovery Certificate limited for the purpose of winding-up proceedings. The contention of the Respondents, if accepted, would be to provide something which is not there in Sub-section (22A) of Section 19 of the Debt Recovery Act.

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 ******************************************* 84. To conclude, we hold that a liability in respect of a claim arising out of a Recovery Certificate would be a "financial debt" within the meaning of Clause (8) of Section 5 of the IBC. Consequently, the holder of the Recovery Certificate would be a financial creditor within the meaning of Clause (7) of Section 5 of the IBC. As such, the holder of such certificate would be entitled to initiate CIRP, if initiated within a period of three years from the date of issuance of the Recovery Certificate. III. From the above judgement of the Hon’ble Supreme Court, the Applicant’s status as a Financial Creditor is further strengthened by the fact that the Section 7 application is not solely predicated upon the mortgage created over the assets of the Corporate Debtor, but is also supported by a duly adjudicated DRT Decree and Recovery Certificate. These instruments conclusively establish the debt and default of the Corporate Debtor, and therefore squarely bring the Applicant within the statutory definition of a Financial Creditor, entitling it to seek initiation of the Corporate Insolvency

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 Resolution Process before this Adjudicating Authority. IV. Thus, based on the facts and circumstances of the present case and the aforementioned judgments, we are of the view that the Bank shall be treated as “Financial Creditor” and can initiate CIRP against the Corporate Debtor. 12. From the documents and submissions, the following stand established: I. There exists a financial debt owed by the Corporate Debtor as a mortgagor. II. The quantum of debt exceeds the statutory threshold. III. Default occurred on 04.02.2022 and the Company Petition is filed on 06.03.2024 so well within the limitation period. IV. Debt is supported by the DRT decree and Information Utility records. V. No valid legal objection has been established. 13. The Hon’ble Supreme Court in the case of Innoventive Industries Limited v. ICICI Bank Limited16, where it has discussed extensively the scope of the Adjudicating Authority under section 7 of the IBC is limited to assessing the records provided by the financial creditor

16 Civil Appeal No. 8337-8338 of 2017

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 to satisfy itself that the default has occurred as held in para 28 and 30. “28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor – it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the “debt”, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 that a default has occurred. It is of no matter that the debt is disputed so long as the debt is “due” i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise.” 14. Hence, the Application filed under section 7 of the IBC, 2016, for initiation of corporate insolvency resolution process against the Respondent/Corporate Debtor deserves to be admitted. ORDER 15. In terms of the foregoing discussion, we ALLOW the petition bearing Company Petition (IB) No. 46/KB/2024 filed under Section 7 of the IBC, 2016, and accordingly, we order the initiation of Corporate Insolvency Resolution Process (“CIRP”) in respect of the Corporate Debtor by the following Orders: I. The Petition filed by The South Indian Bank (Financial Creditors), under Section 7 of the Insolvency & Bankruptcy Code, 2016, is hereby, ADMITTED for initiating the Corporate Insolvency Resolution Process in respect of M/s. Sen Holding Private Limited (Corporate Debtor).

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 II. As a consequence of this Petition being admitted in terms of Section 7 of the IBC, 2016, moratorium as envisaged under the provisions of Section 14(1) of the Code, shall follow in relation to the Respondent/(CD) as per clauses (a) to (d) of Section 14(1) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(3) of the Code shall come into force. III. Moratorium under Section 14 of the IBC, 2016, prohibits the following, as: 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 asset 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 Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002);

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 d. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor [Explanation.--For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period;] IV. The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period. V. The provisions of sub-section (1) of the Section 14 shall not apply to such transactions as may be KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 notified by the Central Government in consultation with any financial sector regulator.

VI. The Applicant has proposed the name of Mr. Anup Kumar Singh, having Registration No. IBBI/IPA-001/IP- P00153/2017-18/10322 (Email ID: anup_singh@stellarinsolvency.com) as the Interim Resolution Professional (“IRP”). We have perused that there are written communication and consent of IRP in Form- 2 with Declaration, annexed at pages 342-346 to the petition, as per the requirement of Rule 9(l) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. In addition, further necessary disclosures have been made by “Anup Kumar Singh” as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7(3)(b) of the code. Hence, we appoint “Anup Kumar Singh” as the Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the IBC subject to submission of a valid Authorisation of Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016. The fee payable to IRP or the RP, as the case may be, shall be compliant with such Regulations, Circulars and Directions as may be KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 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 21 of the I&B Code. VII. In pursuance of Section 13 (2) of the Code, we direct the IRP or the RP, as the case shall cause a public announcement immediately with regard to the admission of this application under Section 7 of the Code and call for the submission of claims under Section 15 of the Code. The public announcement referred to in Clause (b) of sub-section (1) of Section 15 of the IBC, 2016, shall be made immediately. The expression immediately means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. VIII. During the CIRP period, the management of affairs of the Corporate Debtor shall vest in the IRP or the RP, as the case may be, in terms of Section 17 of the IBC, 2016. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 steps will follow. There shall be no future opportunities in this regard. IX. The Interim Resolution Professional is also free to take police assistance to take full charge of the Corporate Debtor, its assets and its documents without any delay, and this Court hereby directs the concerned Police Authorities and/or the Officer-in- Charge of Local Police Station(s) to render all assistance as may be required by the Interim Resolution Professional in this regard. X. The IRP or the RP, as the case may be, shall submit to this Adjudicating Authority periodical report with regard to the progress of the CIR Process in respect of the Corporate Debtor. XI. The Financial Creditors shall be liable to pay to IRP a sum of Rs. 3,00,000/- (Rupees Three Lakh Only) as payment to meet the cost of CIRP arising out of issuing public notice and inviting claims etc., as per Regulation 33(3) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, which amount shall be adjusted at the time of final payment. The expenses relating to the CIRP are subject to the approval of the Committee of Creditors (CoC).

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 XII. In terms of sections 7(5) and 7(7) of the Code, the Registry of this Adjudicating Authority is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the Interim Resolution Professional by Speed Post and through email immediately, and in any case, not later than three days from the date of this Order. XIII. Additionally, the Registry of this Adjudicating Authority shall serve a copy of this Order upon the Insolvency and Bankruptcy Board of India (IBBI) for their record and also upon the Registrar of Companies (RoC), Kolkata to whom the company is registered with, by all available means for updating the Master Data of the Corporate Debtor. XIV. The Resolution Professional shall conduct CIRP in a time-bound manner as per Regulation 40A of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation, 2016. XV. The IRP/RP shall be liable to submit the periodical report including the minutes of the CoC of the Corporate Debtor, with regard to the progress of the CIR Process in respect of the Corporate Debtor to this Adjudicating Authority from time to time. XVI. The order of moratorium shall cease to have effect as per Section 14(4) of the I&B Code.

KOLKATA BENCH, (COURT NO.-II) KOLKATA C.P.(IB) No.46/KB/2024 16. Certified copies of this order, if applied for with the Registry of this Adjudicating Authority, be supplied to the parties upon compliance with all requisite formalities. 17. Post the Company Petition on 29.01.2026 for filing the Periodical Progress Report by the IRP/RP as appointed herein.

(Rekha Kantilal Shah) (Labh Singh) Member (Technical) Member (Judicial)

Order signed on the 25th day of November 2025 S.T. LRA