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TMI Blog2018 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... cy Resolution Process' initiated against the Appellant-'Corporate Debtor', filed a common set of paper books, they were heard together and disposed of by this common judgment. 2. The Respondent- Sunrise 14 A/S, Denmark, a Company incorporated under the Danish Law having its registered office at Esplanaden 50, 1263 KØbenhavn K, Denmark, claiming itself to be the 'Financial Creditor' filed application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") against M/s. Muskaan Power Infrastructure Limited ('Corporate Debtor'). The Adjudicating Authority (National Company Law Tribunal), Chandigarh Bench, Chandigarh, by order dated 28th July, 2017 admitted the application, declared moratorium, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... &B Code'. 5. We have heard learned counsel for the Appellant and learned counsel for the Respondent and also perused the record. 6. Sub-section (3)(a) of Section 7 of the 'I&B Code' mandates the 'Financial Creditor' to enclose 'record of the default' recorded with the information utility or such other record or evidence of default as may be specified by 'Insolvency and Bankruptcy Board of India'. 7. Admittedly, the Respondent is a Foreign Company, incorporated under the Danish Law not under the Companies Act, 1956 or 2013. In the application (Form-1) while the amount of default has been shown to be USD$ 190,210 including interest, date of default has been shown to be 16th June, 2016 and 24th August, 2016. In Part-V of Form-1, while detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... THIS APPLICATION IN ORDER TO PROVE THE EXISTENCE OF FINANCIAL DEBT. THE AMOUNT AND DATE OF DEFAULT DOCUMENTS PERTAINING TO LOAN 15: i. Disbursement Request Letter from Corporate Debtor to Financial Creditor dated March 21, 2016 for release of funds amounting to USD 185,200.00 is annexed at "Annexure 1 (G)" hereto; ii. Notice of Assignment from Corporate Debtor to Financial Creditor dated March 21, 2016 and Acknowledgement of receipt of Notice of Assignment dated March 21,2016 (copied to Financial Creditor) in accordance with Clause 3 of the Trade Finance Facility Agreement is annexed at "Annexure I (H) Colly" hereto; iii. Transaction details evidencing payment made by Financial Creditor to the Corporate Debtor as "Annexure I (I)" here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand Promissory note dated March 30, 2016 issued by the Corporate Debtor in favour of the Financial Creditor for an amount of USD 200,000.00 plus interest as more specifically stated in the Demand Promissory Note annexed at "Annexure I (N)" hereto; xiii. Demand Notice dated August 29, 2016 issued by the Financial Creditor to the Corporate Debtor is annexed at "Annexure I (O)" hereto; xiv. Letter dated September 4, 2016 Issued by the Corporate Debtor in response to the Demand Notice dated August 29, 2016 is annexed at "Annexure I (P)" hereto; xv. Demand Notice dated October 5, 2016 issued by the Advocates of the Financial Creditor to the Corporate Debtor along with proof of acknowledgement is annexed at "Annexure I (O)" hereto;' &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred by Respondent under Section 7 is not complete in absence of 'records of default', as required in terms of sub-section (3) (a) of Section 7 of the 'I&B Code'. In such case, it was not open to the Adjudicating Authority to entertain the application preferred by Respondent. 12. This apart, as we find that the application under Section 7 of the 'I&B Code' in Form-1 has not been filed by the Respondent- 'Operational Creditor', but an Advocate, Mr. Rohit Khanna, who is neither Authorised Representative nor holds any position with or in relation to the 'Financial Creditor', as required to be stated as Form-1 of the Adjudicating Authority Rules, 2016, we hold that application under Section 7 of the 'I&B Code' was not maintainable at the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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