2022 (3) TMI 559 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT - An application under Section 7 of the Code is maintainable if the debt is proved to be due and there is default. In view of the Section 4 of the Code, the moment default is of Rupees one hundred lakhs or more, an application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. The applicant clearly comes within the definition of Financial Creditor. The material placed on record as stated in the paras above further confirms that respondent has debt due and has committed default in repayment of the outstanding financial debt. On a perusal of Form-I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. It is also seen that there is no disciplinary proceeding pending against the proposed Interim Resolution Professional - the present application is complete in all respect. The applicant financial creditor is entitled to move the application against the corporate debtor in view of admitted outstanding financial debt and default of the same by the corporate debtor. The default in repayment of the financial debt is not refuted by the Corporate Debtor. In terms of Section 7(5)(a) of the Code, the present application is hereby, admitted - application allowed - moratorium declared.

Issues:
1. Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 for triggering Corporate Insolvency Resolution Process.
2. Jurisdiction of the National Company Law Tribunal over the matter.
3. Debt due and default by the corporate debtor.
4. Appointment of Interim Resolution Professional.
5. Submission of necessary documents by the applicant.
6. Admission of the application and declaration of moratorium.
7. Directions to the Interim Resolution Professional and related parties.

Analysis:
1. The Design Plus Architecture filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Corporate Insolvency Resolution Process against the respondent company, M/s. Modex International Securities Limited, due to default in repayment of a loan agreement dated 01.04.2019. The applicant, being a financial creditor, fulfilled the requirements under Section 7(3)(b) by proposing Mr. Sanjay Garg as the Interim Resolution Professional.

2. The Tribunal, having territorial jurisdiction over the NCT of Delhi, asserted its authority to adjudicate the matter concerning the corporate debtor based in New Delhi. The respondent company acknowledged the default in repayment, leading to the admission of the application under Section 7(5)(a) of the Code, with the appointment of Mr. Sanjay Garg as the Interim Resolution Professional.

3. The applicant substantiated its claim with documents including the loan agreement, bank statements, and correspondence with the corporate debtor. The Tribunal found the application complete and valid, as the debt due and default were established, meeting the criteria for initiating the Corporate Insolvency Resolution Process under the Code.

4. Following the admission of the application, the Tribunal directed the Interim Resolution Professional to make a public announcement and instructed the applicant to deposit a specified amount for expenses. Additionally, a moratorium was declared under Section 14 of the Code, with exceptions outlined for specific transactions and services.

5. The Interim Resolution Professional was tasked with performing various functions under the Code diligently and was granted the authority to take legal action against any misconduct or illegal transactions related to the corporate debtor. The Tribunal emphasized the obligation of all parties involved to cooperate with the Interim Resolution Professional for the effective management of the corporate debtor's affairs.

6. The Tribunal concluded by instructing the office to disseminate copies of the order to the relevant parties promptly. The comprehensive judgment addressed the legal aspects of the application, jurisdiction, debt default, appointment of the Interim Resolution Professional, procedural requirements, and the declaration of moratorium, ensuring adherence to the provisions of the Insolvency and Bankruptcy Code, 2016.

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