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TMI Blog2018 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission. Thus the petition is complete from all angles. This petition is admitted and Mr. Manoj Kulshrestha, F4-CC-14, Ansal Plaza, (Opp. Dabur), Vaishali, Ghaziabad, Registration No. IBBI/IPA-033/IP-N0005/2016-17/10024 is appointed as an Interim Resolution Professional. In pursuance of Section 13 (2) of the Code, we direct that Interim Insolvency Resolution Professional to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. We also declare moratorium in terms of Section 14 of the Code. - C.P. IB NO. 494(PB)/2017 - - - Dated:- 25-9-2018 - MR M. M. KUMAR, PRESIDENT AND MR S. K. MOHAPATRA, MEMBER (T) For The Appellant : Soumya Dutta, Soumyajit Nath, Sahil Gupta and Shailendra Singh, Advocates For The Respondent : Ms. Ankur Berry, Advocate JUDGMENT M.M. KUMAR, PRESIDENT Reliance Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 have been placed on record (Annexure A/2). 4. The 'Corporate Debtor'-Noble Resourcing Business and Solutions Private Limited was incorporated on 12.01.2009 with authorized share capital of ₹ 10,00,000/- and paid-up share capital of ₹ 8,50,000/- which is evident from the Master Data of the 'Corporate Debtor' obtained from the website of Ministry of Corporate Affairs (Annexure-A/3). The registered office of the 'Corporate Debtor' is situated at 16/603, East End Apartment, Mayur Vihar, Phase-1 Extension, New Delhi-110096. 5. The Financial Creditor has proposed the name of Shri Manoj Kulshrestha, F4-CC-14, Ansal Plaza, (Opp. Dabur), Vaishali, Ghaziabad. He has registration No. IBBI/IPA-033/IP-N0005/2016-17/10024. A written communication dated 18.09.2017 made by Mr. Kulshrestha in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or Insolvency Professional Agency of Institute of Cost Accountants of India. In addition, further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our of the Financial Creditor. An irrevocable power of attorney confirming hypothecation of the movable assets towards the Financial Creditor dated 29.09.2015 was also signed by the Corporate Debtor. Copies of the demand promissory note, letter of continuity for demand promissory note an irrevocable power of attorney all dated 29.09.2015 have been placed on record (Annexure A/10, A/11 A/12). A copy of charge Form filed by the 'Corporate Debtor' registered in favour of the 'Financial Creditor' with the Registrar of Companies, NCT of Delhi Haryana is enclosed (Annexure-A/15). In support of the claim of default, report of CIBIL has been enclosed (Annexure-A/6). 9. From the aforesaid three machines one machine being machine bearing No. SMARTURN CNC LAT was not delivered to the Respondent due to which a sum of ₹ 24,09,200/- was returned by the dealer to the Financial Creditor and the same has been duly adjusted into said loan account. 10. As per the averments of the 'Financial Creditor', as on 10.07.2017 a total sum of ₹ 64,90,927/- is in default on account of payment of overdues and penal interest. 11. Learned counsel for the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently Financial Creditor without the consent of Corporate Debtor sent the said amount received from Idea Machine Tools to LMV Ltd. in the month of January, 2016. (v) The Financial Creditor have duly admitted without disclosing the true facts that the machine bearing detail SMARTURN CNC LAT (2 machines) to be supplied by LMW Ltd. was not delivered to the Corporate Debtor and that a sum of ₹ 24,09,200/- was returned by LMW Ltd. to the Financial Creditor directly. (vi) The Financial Creditor had sanctioned a loan amount of ₹ 1,06,35,000/- out of which the Corporate Debtor paid an amount of ₹ 26,95,031/- and further an amount of ₹ 24,09,200/- was paid to the wrong entity for the faults of the Financial Creditor itself which was subsequently returned by LMW Ltd. to the Financial Creditor. The Corporate Debtor in reality availed only a loan of ₹ 54,53,690/- only. (vii) The Corporate Debtor thereafter repeatedly requested the Financial Creditor to restructure the said loan and to recalculate the EMI's for the said loan however the Financial Creditor instead of paying heed to the request of the Corporate Debtor continued to charge the same EM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terim Insolvency Resolution Professional to make public announcement immediately with regard to admission of this application under Section 7 of the Code. The expression 'immediately' means within three days as clarified by Explanation to Regulation 6 (1) of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 17. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the provisions of Section 14 (1) (a), (b), (c) (d) and thus the following prohibitions are imposed which must be followed by all and sundry: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action 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 Reconstructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition would not warrant acceptance because the amount of default and unpaid debt as per the CIBIL account has been proved. Such a piece of documentary evidence result into a binding presumption. The Corporate Debtor has failed to rebut that legally binding presumption by producing on record any cogent documentary evidence to the contrary. In any case we are not to determine the amount of unpaid debt (default) and it shall be open for determination by Committee of Creditors. 21. A bare perusal of the pleadings and submission made through reply by the Corporate Debtor makes it evident that there is a patent admission of the Corporate Debt with regard to the advancement of loan taken by them from the Financial Creditor which is payable and due by the Corporate Debtor. A further perusal of the pleadings also clarifies the position that first charge over the respondent's property was created by them in favour of the Financial Creditor. 22. The other argument that settlement was possible would also not survive because we have granted ample time to the Corporate Debtor to come forward and prevail upon the Financial Creditor to accept its offer. However, nothing could be achieve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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