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TMI Blog2019 (3) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... resent application is complete in all respect and the applicant financial creditors are entitled to claim their outstanding financial debts from the corporate debtor and that there has been default in payment of the financial debt. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. - COMPANY PETITION NO. (IB)-1013(PB)/2018 - - - Dated:- 12-2-2019 - MR M.M. KUMAR, PRESIDENT AND DR. DEEPTI MUKESH, MEMBER (JUDICIAL) For The Applicant : Mr. Rakesh Mittal, Advs. For The Respondent : Mr. Anuj Bhandari, Advs. ORDER CHIEF JUSTICE, (RTD.) M. M. KUMAR, PRESIDENT. Mr. Satyendra Jain has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with, rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent Company M/s. Omway Bull estate Private Limited referred to as the corporate debtor. 2. The Respondent Company M/s. Omway Builestate Private Limited (CIN No. U45201 DL2004 PTC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21469/2013. 6. It is claimed that as on 20.07.2018 the total outstanding amount including interest due to the respondent corporate debtor comes to ₹ 10,14,10,125/-. 7. The respondent corporate debtor has filed its reply on 26.10.2018. Rejoinder to the reply was filed by applicant on 19.11.2018. 8. The respondent has raised an objection that the claim of the applicant is barred by limitation. It is submitted that the cause of action arose on 31.05.2010 when there was default on the part of the Respondent for payment of loan. It is further contended that even assuming that the cause of action arose on 19.03.2013 when the decree was passed, the claim is still barred by limitation as it was filed on 10.08.2018. 9. It is also the case of respondent that Hon ble High Court has passed status quo order over the properties of the respondent company vide common order dated 21.1.2014 passed in Ex. P. No. 142/2013 and 143/2013. Therefore, since the said order of status quo is still in operation no action can be taken against the respondent company. It is further pointed out that there exist another status quo order against the assets of the respondent company passed by Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself or jointly with other Financial Creditors. 19. The expressions Financial Creditor and Financial debt have been defined in Section 5(7) and 5(8) of the Code and precisely Financial debt is a debt along with interest, if any, which is disbursed against the consideration for time value of money. 20. In the present case the applicant had given the loan amount which is recoverable with applicable interest by entering into loan agreements with the corporate debtor. The corporate debtor had borrowed the loan against payment of interest as agreed between the parties. The loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover the debt claimed in the present application includes both the component of outstanding principal and interest. In that view of the matter not only the present claim comes within the purview of Financial Debt but also the applicant can clearly be termed as Financial Creditor so as to prefer the present application under Section 7 of the Code. 21. The application filed by the applicant financial creditor under sub-section 5(a) of Section 7 of the Code, has to be admitted on sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the provisions of Section 14(1)(a), (b), (c) (d) of the Code. Thus, the following prohibitions are imposed: (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 Securitization 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. 28. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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