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TMI Blog2018 (9) TMI 1531X X X X Extracts X X X X X X X X Extracts X X X X ..... hankar, Naveen Hegde, Bhuvan Arora, Advocates, Manish Sharma, Advocate, Amit Kr. Singh and Rishlay Sahni, Advocates JUDGMENT M.M. Kumar, President The Financial Creditor -Deepak Seth has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of Moods Hospitality Private Limited. 2. The Corporate Debtor-Moods Hospitality Private Limited was incorporated on 01.10.2002. The identification number of the Corporate Debtor is U55101DL2002PTC117205 and its registered office is situated at House No. 1A, Basement Khirki Village, New Delhi - 110017. Its authorized share capital is ₹ 37,17,76,420 and the paid up share capital is ₹ 36,57,27,930 which is based on the details given in master data obtained from the official website of Registrar of Companies. 3. The Financial Creditor has proposed the name of Shri Akhil Goel, F-224-A, Laxmi Nagar, New Delhi-110092. His registration number is IBBI/IPA-001/IP-P00666/2017-18/11134. A written communication dated 18.10.2018 sent by Mr. Goel in terms of Rule 9(1) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo Hundred and Twenty Six Only). 8. The details of the security held by, or charge created for the benefit of financial creditor has been placed on record (Annexure IC) which fulfils the requirements of Section 78 of Companies Act, 2013. 9. The Financial Creditor has then attached a list of other documents to the application to prove the financial debt, the total amount due and the date of default. Those documents are as under: - (1) A copy of loan agreement dated 22.09.2016. (2) A copy of hypothecation agreement dated 19.08.2017. (3) A copy of certificate of registration of charge in favour of the Financial Creditor. (4) A copy of the bank statement of the Financial Creditor reflecting transfer of an amount of ₹ 1,50,00,000 to the account of the Corporate Debtor. (5) A copy of the bank statement of the Financial Creditor reflecting transfer of an amount of ₹ 2,00,00,000 to the account of the Corporate Debtor. (6) A copy of bank statement of Financial Creditor reflecting non-payment of dues of the Corporate Debtor. (7) A copy of computation sheet in respect of amount due which is sum up in tabulated form. 10. The Corporate Debtor has fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he outstanding amounts without any substantial proposal from any of the strategic investor or otherwise would not cut any ice. How and in which manner same would be cleared and if the said intention is based on so many ifs and buts then the Financial Creditor cannot be compelled to accept the terms of proposal. Even otherwise such a proposal must be the result of free volition. A due diligence is proposed to be conducted in such type of cases and till date there is no concrete proposal in place. However, if the Corporate Debtor is confident about the investment from the strategic investor or otherwise, the same could be examined by the Committee of Creditors of the Corporate Debtor along with Interim Resolution Professional after admission of the present petition. Even this petition could be withdrawn after admission if requirement of amended provisions of the Code are fulfilled. Further such type of objection raised by the Corporate Debtor has been noticed to highlight their wish. However, the fact remains that till date substantial outstanding amount in default is payable by the Corporate Debtor . Therefore, this objection too would not require any serious consideration. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e co-operation and care of the interest of the applicant has come on record then nothing remains for adjudication in the said application. 18. Now we deal with the submissions made on behalf of the Financial Creditor. 19. Mr. Ramji Srinivasan, learned Counsel for the petitioner has argued that all requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, he has submitted that the application is complete in all respects as per the requirements of Section 7(2) of the Code and other conditions prescribed by Rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. He has further submitted that the details of default along with its dates have been clearly stated in part IV. There is overwhelming evidence to prove default and name of the resolution professional has also been specified. 20. Having heard learned counsel for the parties we may first examine the provisions of Section 7(2) and Section 7(5) of IBC which read as under:- Initiation of corporate insolvency resolution process by financial creditor. 7(1) 7(2) The fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 25. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 26. The Interim Resolution Professional shall perform all his functions religiously and strictly which are contemplated, inter alia, by Sections 15, 17, 18, 19, 20 21 of the Code. He must tread the path honestly and with conviction. He must follow best practices and princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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