2021 (10) TMI 592 - 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 - The Corporate Debtor in his reply to the present petition has submitted that in the present application Form-2 is not submitted with the proper disclosures as being mandatory compliance under the guidelines of Insolvency Bankruptcy Board of India'. This contention of Corporate Debtor does not deserve any merit consideration as the Financial Creditor has duly submitted the Form-2 under Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 whereby, the Proposed Interim Resolution Professional communicated its written consent. It is pertinent to mention here that, the Code requires the Adjudicating Authority to only ascertain and record satisfaction in a summary adjudication, as to the occurrence of default before admitting the application. The material on record clearly goes to show that respondent had availed the credit facilities and has committed default in repayment of the outstanding loan amount - the present application is complete in all respect and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been default in payment of the financial debt. It is thus seen that the requirement of sub-section 5 (a) of Section 7 of the code stands satisfied as default has occurred, the present application filed under Section 7 is complete - application admitted - moratorium declared.

Issues:
Application for Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code 2016 based on alleged default by the Respondent in repayment of loan amount.

Detailed Analysis:

1. Alleged Default and Loan Agreement:
The Applicant, 'M/s. Cosmic Infrasolution Pvt. Ltd.', filed an application to initiate Corporate Insolvency Resolution Process against 'M/s. Prudential Hotels Pvt. Ltd.' for defaulting on a loan amount of ?3,87,67,780. The loan agreement was executed on 01.03.2017 for ?2,95,00,000 repayable with interest at 12% per annum by 31.12.2019. The Respondent failed to repay the loan, leading to default as of 01.01.2020.

2. Contentions Raised by Respondent:
The Respondent contested the application, disputing the amount claimed and alleging non-compliance with mandatory disclosures in Form-2. The Respondent also argued that the Applicant failed to provide proof of default in the form of banker book evidence.

3. Settlement Talks and Tribunal's Decision:
Both parties initially attempted to settle the matter amicably outside the Tribunal but failed. After reviewing submissions and arguments, the Tribunal found merit in the Applicant's claim of default by the Respondent. The Tribunal emphasized the necessity for the Adjudicating Authority to ascertain default before admitting the application.

4. Admission of Application and Appointment of Interim Resolution Professional:
The Tribunal admitted the application, initiating the Corporate Insolvency Resolution Process against the Respondent. Mr. Rahul Jain was appointed as the Interim Resolution Professional. The Tribunal directed immediate public announcement of the admission and declared a moratorium under Section 14 of the Code.

5. Functions of Interim Resolution Professional and Legal Obligations:
The Interim Resolution Professional was tasked with various functions under the Code and instructed to manage proceedings diligently and in accordance with regulations. All personnel associated with the Corporate Debtor were mandated to cooperate with the Interim Resolution Professional. Any violations or illegal transactions would be subject to appropriate action by the Tribunal.

6. Communication and Updates:
The Registry was directed to communicate the order to relevant parties promptly. The Registrar of Companies was instructed to update the status of the Corporate Debtor on its website, highlighting the admission of the petition.

This detailed analysis encapsulates the key aspects of the judgment, outlining the legal proceedings and decisions made by the Tribunal regarding the application for Corporate Insolvency Resolution Process.

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