NCLT allows Interlocutory Application for inserting Inkel Ltd. as Additional Corporate Debtor with Seguro foundations

NCLT allows Interlocutory Application for inserting Inkel Ltd. as Additional Corporate Debtor with Seguro foundations

The National Company Law Tribunal (NCLT) has allowed the Interlocutory Application filed against M/s. Seguro Foundations and Structures Pvt. Ltd. and also to implead M/s Inkel Limited as Additional Corporate Debtor under Section 9 of the Insolvency and Bankruptcy Code (I&B Code)

Brief facts of the case-

An Interlocutory Application was filed by Shaji Mathew (Applicant) under Section 9 of the Insolvency and Bankruptcy Code (I&B Code) against M/s. Seguro Foundations and Structures Pvt. Ltd (Corporate Debtor) and to implead M/s Inkel Limited as Additional Corporate Debtor in the above application ('Additional Corporate Debtor').

It was submitted by the applicant that his appointment was done as the Project Manager by the Corporate Debtor for the modernization of Schools in Malappuram District from 1 June 2018 vide appointment letter dated 28 May 2018. It was agreed upon by the Corporate Debtor that the applicant shall receive a consolidated salary of Rs. 80,000/- (Rupees Eighty Thousand only) for the services.

The applicant stated that even after his efficient and diligent performance, the Corporate Debtor had abruptly stopped paying salary from December 2018 without serving any notice for the same.

The applicant further stated that his employment was not been terminated from the employment nor has received any intimation from the Corporate Debtor providing a reason for discontinuation of service. Several reminders were given by the applicant to the Corporate Debtor, requesting for the outstanding salary that is due to him. The applicant received no response to those reminders and correspondences initiated.

It was stated by the applicant that he is entitled to receive a total amount of Rs. 10,40,000 from the month of December 2018 to December 2019 towards salary arrears along with interest @ 12% P.A, totaling an amount of Rs.11,02,400.

A demand notice was issued by the applicant to the corporate debtor on 22 January 2020, demanding payment of Rs.11,02,400/-. However, no reply was received by the corporate debtor. Hence, the Applicant took steps under I&B Code for initiation of the Corporate Insolvency Resolution Process.

That the shares of the Corporate Debtor's company have been acquired by M/s. Inkel Ltd. and has control over 65% of the shares of the corporate debtor with effect from 1 December 2017. The said acquisition of shares held in 2016 and the operations of Seguro were managed, controlled, and operated by M/s. Inkel Limited the proposed additional respondent.

The proposed respondent passed a special resolution in its Annual General Meeting to provide a requisite corporate guarantee in favour of The Federal Bank Limited for and on behalf of Seguro Foundations & Structures Private Limited, a subsidiary company for availing working capital limit of Rs. 90 crores sanctioned by the bank.

The applicant urged that the proposed additional Corporate Debtor is in charge of the day to day affairs of the Company and is, therefore, responsible and liable for all the debts and liabilities that are incurred on behalf of the Corporate Debtor.

That the Corporate debtor has been acquired exclusively to enter into agreements and to limit the liability on the proposed additional Corporate Debtor which is in contravention to the provisions of the I&B Code.

The applicant prayed before the Tribunal that the proposed additional Corporate Debtor is to be impleaded in the IBA (Insolvency and Bankruptcy Application) filed under Section 9 of I&B Code as it is entitled to the relief which is premised on the current disputes within these proceedings.

Case Referred by the applicant

Mrs. Mamatha v. AMB Infrabuild Pvt. Ltd. & Ors [Company Appeal (AT) (Insolvency) No. 155 of 2018]- If the two Corporate Debtors collaborate and form an independent Corporate unit entity for developing the land and allotting the premises to its allottees, the application under Section 7 will be maintainable against both of them jointly and not individually against one other.

Issue

Whether the proposed party can be impleaded as an additional Corporate Debtor in an application under Section 9 of I&B Code?

The Tribunal issued the notice to the Corporate Debtor.

The Operational Creditor filed an Interlocutory Application to implead M/s. Inkel Limited as additional Corporate Debtor in the application.

Decision of the Tribunal

The Tribunal found that the Corporate Debtor company had been acquired by M/s Inkel Ltd. and is controlling a stake of over 65% of the shares of the Corporate Debtor with effect from 1 December 2017.

Since the operations of Corporate Debtor were managed, controlled and operated by the proposed Corporate Debtor, it was clear that the proposed additional Corporate Debtor is the holding company of the M/s. Seguro Foundations and Structures Pvt Ltd.

Hence, the Tribunal held that the Application under Section 9 would be maintainable against both of them jointly.

The Tribunal further held that M/s. Inkel Limited should be impleaded as additional Corporate Debtor.

The Tribunal directed the Registry to carry out necessary implement and issue notice to them through email in addition to normal procedure.

The Applicant was also directed to serve notice to the newly impleaded additional Corporate Debtor. It was further directed by the Tribunal that the Additional Corporate debtors shall file its Counter within two weeks.