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TMI Blog2017 (12) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code. The petitioner satisfies all the statutory requirements. Therefore, we are inclined to admit the application. In view of the above, we are satisfied that the present application is complete and that the applicant corporate debtor has committed a default. Therefore, as the application is complete the present application is admitted under section 10 (4) (a) of the Code. The corporate insolvency resolution process shall commence from the date of this order under sub-section 5 of section 10 of the Code. - Company Petition No. (IB)-417 (ND)/2017 - - - Dated:- 21-11-2017 - MS. INA MALHOTRA AND MR. S. K. MOHAPATRA, JJ. For The Applicant : Ms. Meetu Singh, Adv. and Naresh Agarwal For The Respondent : Sanjay Bajaj and Ms. Rigasha Takkar ORDER Per S.K. Mohapatra, Member 1. This is an application filed under section 10 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) for initiation of Corporate Insolvency Resolution Process in respect of the applicant company itself. 2. The Applicant, P.K. Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Form 6 of the Rules, the applicant company has filed copies of audited financial statements of the Applicant Company for the last two financial years i.e. 2015-16 and 2016-17. In addition, copy of provisional financial statement of the Applicant Company for the current financial year made up to a date not earlier than fourteen days from the date of the application, i.e. from 01.04.2017 to 10.10.2017 has also been filed. 7. In compliance of Section 10 (3) (b) of the Code the applicant has proposed the name of Mr. Subhash Chand Agarwal, registration No. IBBI/IPA-003/IP-N00059/2017-18/10499 as Interim Resolution Professional. The applicant company has obtained a written communication in Form-2 from the Insolvency Professional for appointment as an IRP. In the Form-2 filed along with the application it has been affirmed by the proposed IRP that he is a registered Insolvency Professional and qualified to practice as an Insolvency Professional. Further it has been affirmed that there is no disciplinary proceedings pending against the proposed IRP. 8. It is the case of the applicant that the applicant company availed loan facilities from the financial creditors which was subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nour of cheque and the same cannot be a ground to reject the application u/s 7 of the Code, being debt and default. 14. It is also pertinent to refer here the case of Annapurna Infrastructure (P.) Ltd. v. SORIL Infra Resources Ltd. [Appeal No. 32 of 2017] wherein vide judgment dated 29.08.2017 Hon ble Appellate Tribunal framed an issue that whether pendency of a proceeding for execution of an award or a judgment and decree bar an operational creditor to prefer any petition under the Code. In the said judgment Hon ble Appellate Tribunal answered the issue in the negative against the respondent - Corporate Debtor . 15. A perusal of aforementioned judgments of Hon ble NCLAT makes it quite clear that during pendency of proceedings under SARFAESI Act, there is no bar for initiation of insolvency proceedings under the Code. 16. That apart in view of the overriding effect given by the provisions of Section 238 of the Code, the initiation of proceeding under SARFAESI Act by the financial creditor is no bar for initiation of insolvency proceedings under the Code. Hence, the objection raised by the financial creditor cannot sustain. 17. It is pertinent to state here that the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount in default. 21. From the detailed examination of the application and the submission made by the learned Counsel, we are of the view that the petitioner has disclosed all the details required by Section 10 of the Code read with Rule- 7 of the Rules. The particulars of the corporate applicant and those of the financial debt have been disclosed in material particulars. The name of the Interim Resolution Professional has also been proposed. The record of the financial debt as per the Books of the Corporate-Applicant; and record of the Operational Debtors; certificate of eligibility of the Interim Resolution Professional, Books of Account showing default; copies of the audited financial statement for the Financial Year ending 31.03.2016 and 31.03.2017, all have been placed on record. A list of assets and liabilities as on 31.03.2017 has also been duly reflected. It has been submitted that the applicant company is in dire need of a resolution plan in the interest of all the stakeholders. The present application has been filed in the requisite form-6 containing the required particulars in terms of sub-section 2 of section 10 of the Code. The petitioner satisfies all the st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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