9911796707
TMI Blog2017 (3) TMI 1574X X X X Extracts X X X X X X X X Extracts X X X X ..... s detailed above (Annexure I). It is repayable by the respondent company to the applicant on or before 30.09.2016 at the rate of 16% interest. An MOU was also entered into between the parties to this effect (Annexure II). (iii) The respondent on 11.04.2016 repaid a sum of Rs. 5,00,000/- as evidenced by Annexure III and the balance sum of Rs. 5,50,000/- is due and payable as evidenced by the certificate issued by the Chartered Accountant of the applicant (Annexure IV). (iv) On 09.10.2016 a demand letter was issued by the applicant to the respondent seeking the repayment of Rs. 5,50,000/-, being the balance amount due with a further reminder on 10.11.2016 in view of inaction on the part of the respondent to the earlier letter, both the demand and reminder letters have been placed on record. (Annexure V colly). (v) The applicant also sent a notice under Section 433(e) of the Companies Act, 1956 dated 30.11.2016 (Annexure VI). The proof of dispatch and delivery have been (Annexures VII and VIII). The applicant has also sent a notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 calling upon the respondent to repay the undisputed and admitted amount of Rs. 5,50,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IBC as the implementation of IBC is still at its infancy. Section 2 of IBC makes it clear that the provisions of IBC will apply to Companies incorporated under the provisions of Companies Act, 2013 or under previous Company Act, Limited Liability Partnership (LLP) incorporated under the Limited Liability Partnership Act, 2008 or other incorporated bodies as may be notified by the Central Government and partnership and individuals in relation to their insolvency, liquidation, voluntary liquidation or bankruptcy as the case may be. While the insolvency resolution and bankruptcy for individuals and partnership firms under IBC is vested with the Debts Recovery Tribunal as provided under Part III of the IBC, in relation to Corporate Persons the jurisdiction has been vested with this Tribunal as provided under Part II of the IBC titled as "Insolvency Resolution and Liquidation for Corporate Persons". Section 3(7) of the IBC defines a "Corporate Person" and Section 3(8) of the IBC defines a "Corporate Debtor". 6. The instant Application, as already stated in the prelude to this Order, has been filed under Section 7 of the IBC by the applicant as a "financial creditor" of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3). (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red with the ROC. 10. Further though the Applicant has claimed vide Annexure XIII (pages 35-39) as the available annual accounts of the respondent, perusal of the same discloses that only a few pages of the auditor's report that too of the applicant has been filed, without any financial statement of the respondent enclosed and for that matter even that of the applicant, which clearly shows the intent of the applicant to not to disclose the information as required, for the Tribunal to exercise its discretion. 11. Primarily to sustain the transaction of loan as given by the applicant to the respondent, the applicant seeks to rely on a Memorandum of Understanding (MOU) as entered into between two corporate entities. Curiously the said MOU does not contain a date as to when the MOU was executed. Further the MOU also seems to be not conclusive from the following words as found in the last paragraph of the said MOU as reproduced hereunder: "That the parties has agreed to enter into a detailed exhaustive agreement later on" (emphasis supplied). However no such further agreement as contemplated by the above terms contained in the MOU has been produced before us. Further the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es great faith on their certificates. The function of issuance of certificates is a serious matter and it should not be done in a mechanical manner. Further in the absence of Information Utility as contemplated under the IBC the role of the named Interim Resolution Professional (IRP) becomes all the more onerous and the certificate issued by him/her should conform to in effect vouching the contents of the application and the documents filed therewith in fine detail. It must not be made in a pedantic or mechanical manner. It is to be appreciated by all the IRPs that they have been tasked with a very important function in the entire scheme of Corporate Insolvency and Liquidation Process and the onus is cast on them to act diligently. In this connection it will not be out of place to point out the Code of Conduct for Insolvency Professionals as formulated by the Insolvency and Bankruptcy Board of India under the regulations governing the Insolvency Professionals. Finally the IBC by virtue of Section 65 clothes this Tribunal with authority to impose a fine extending up to Rs. One Crore for fraudulent and malicious initiation of proceedings and hence the parties and professionals are re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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