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2019 (2) TMI 1621 - Tri - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - Corporate Debtor - default in repayment of borrowed amount - Section 7 of the I BC, 2016 - HELD THAT - On examination of sequence of events, ex facie it is evident that the Petitioner/ Financial Creditor had made Fixed Deposits with the Financial Debtor and also entered into an MoU in June, 2014 with the Financial Debtor. According to this MoU, the Corporate Debtor had assured the Financial Creditor that all amounts drawn down from the bank would be repaid to the Bank by the Corporate Debtor. It was also agreed that the Corporate Debtor would pay the Financial Creditor an interest of 7% per annum simple interest on all amounts availed by the Corporate Debtor from the Bank. The Corporate Debtor has not denied the existence of a MoU with the Financial Creditor. The Debt is to be qualified as Financial Debt as defined under section 5(8) of Insolvency Bankruptcy Code, 2016. As a result, the Financial Creditor has filed this Application for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. Since this is a Petition of Financial Creditor , therefore, the Insolvency Process shall commence as prescribed under Section 7 of I BC, 2016 - the Moratorium as prescribed under Section 14 of the Code 2016 shall come into operation - Application admitted.
Issues Involved:
1. Initiation of Corporate Insolvency Resolution Process (CIRP) 2. Validity of the Power of Attorney 3. Limitation period for the debt claim 4. Nature of the financial transaction 5. Completeness and compliance of the application under Section 7 of the Insolvency and Bankruptcy Code (I&B Code), 2016 Issue-wise Detailed Analysis: 1. Initiation of Corporate Insolvency Resolution Process (CIRP): The Petitioner, a Financial Creditor, filed a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016, to initiate CIRP against the Corporate Debtor for a financial debt amounting to ?6,09,11,309/-. The petition included claims for principal, interest, and unpaid amounts accrued on a home loan account. 2. Validity of the Power of Attorney: The Respondent Debtor contended that the application was filed by a Power of Attorney holder, which is not permissible. However, the Tribunal found that the Power of Attorney granted to Mr. Anand Laxman Rao Dhumal by the Petitioner, an NRI, was valid. The Power of Attorney covered all necessary acts, including legal actions to recover money. The Tribunal noted that there is no specific provision in the Insolvency Code prescribing the mode for writing a Power of Attorney for filing a petition under the Code. 3. Limitation Period for the Debt Claim: The Respondent argued that the debt claim was barred by limitation, as the interest was not paid from 31st December 2014, and the petition was filed on 02.04.2018. The Tribunal rejected this argument, stating that the default was continuous, and the Corporate Debtor had acknowledged the debt multiple times, including via email on 27.12.2016. Therefore, the petition was within the prescribed time limit. 4. Nature of the Financial Transaction: The Tribunal examined the sequence of events and documents, concluding that the debt qualified as a "Financial Debt" under Section 5(8) of the Insolvency and Bankruptcy Code, 2016. The Petitioner had made fixed deposits and entered into an MoU with the Corporate Debtor, who assured repayment of bank loans and interest payments. The Corporate Debtor defaulted on these obligations, leading the Petitioner to file the petition. 5. Completeness and Compliance of the Application: The Respondent claimed the application was incomplete and non-compliant with statutory requirements. The Tribunal noted that the Petitioner had provided sufficient documentation, including bank statements showing transfers to the Corporate Debtor. The Tribunal dismissed the Respondent's objections regarding the completeness of the application. Findings and Order: The Tribunal admitted the petition, initiating the Corporate Insolvency Resolution Process against the Corporate Debtor. It appointed Mr. Pravin Navandar as the Interim Resolution Professional (IRP) and declared a "Moratorium" under Section 14 of the Code, prohibiting the institution of any suits or parallel proceedings and liquidation of the Debtor's assets until the completion of the insolvency process. The IRP was directed to perform duties as defined under Section 18 of the Code and submit a Resolution Plan for approval within 30 days. Conclusion: The Tribunal found the petition valid and compliant, rejecting the Respondent's technical objections. The Corporate Insolvency Resolution Process was commenced, and the moratorium was declared to protect the Debtor's assets during the process.
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