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TMI Blog2019 (8) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... petition has been filed by moving application in Form-I as prescribed in rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the "Rules"). 2. The petitioner-company was incorporated on June 3, 2004 under the Companies Act, 1956. The petitioner-company passed resolution dated September 3, 2018 (annexure A7) resolving to file the petitioner against the respondent-corporate debtor and authorising Mr. Neeraj Bakshi, director of the company to sign and verify the pleadings and to do all the necessary acts in the progress of the case. There is affidavit of Mr. Neeraj Bakshi, the authorised signatory in support of contents of the application. 3. The respondent-corporate debtor was incorpora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent-corporate debtor and its directors have failed to appear in the court of the magistrate despite issuance of summoning orders and were declared proclaimed offenders. 5. It is stated that the petitioner also filed a petition for winding up of the company in the hon'ble High Court of Punjab and Haryana bearing C. P. No. 122 of 2015 under sections 433, 434 and 439 of the Companies Act, 1956 in support of part of the amount of Rs. 90,00,000 under sections 433, 434 and 439 of the Companies Act, 1956. The matter was pending for adjudication before the hon'ble Punjab and Haryana High Court. 6. Thereafter, the meetings were held between the parties and with great efforts, the matter was settled and the respondent-corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues which were presented were dishonoured. The respondent-corporate debtor is said to have committed the default in making payment of unsecured loan and a notice dated September 6, 2018 calling upon the respondent to pay the amount was sent. The copy of the notice is at annexure A5. It is stated in the application form that the amount claimed in default is Rs. 4.50 crores with interest at the rate of 18 per cent. per annum with date of default as June 26, 2018 which is the date of dishonour of the cheque dated June 20, 2018. Copies of the agreements dated May 20, 2017 and June 15, 2018 entered into between the parties are at annexure A1 (colly). 9. We have heard learned counsel for the petitioner at the preliminary stage and have perused t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cheque(s) ; (ii) Whether the accused in the criminal complaint(s) put in appearance before the Magistrate in response to the summons ; (iii) Whether the complaint(s) is/are still pending or have since been disposed of and if so, copies of the final orders passed in the said complaint(s) by the Magistrate ; (iv) Whether the interest was debited in the account of the respondent-corporate debtor in the books of account of the petitioner before May 25, 2018 and the details thereof ; (v) List of the shareholders and directors of the petitioner of the year 2013 ; and (vi) Copy of the winding up petition, which is statedly pending in the hon'ble High Court." 14. In compliance with the said directions the petitioner has filed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in limine by this Tribunal by order dated May 23, 2018. It was very strange for the petitioner to file another petition on the same cause of action without disclosing the factum of the earlier petition having been rejected. 17. Learned counsel for the petitioner vehemently contended that the cause of action has now arisen afresh on the basis of a new agreement reached between the parties which is at annexure A1(a) dated June 15, 2018. Under this agreement it is stated that the respondent had borrowed a sum of Rs. 4.40 crores from the petitioner and he issued post-dated cheques. It was disclosed that criminal complaints against the corporate debtor and its directors under section 138 of the Negotiable Instrument Act were filed. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l within the definition of term "financial creditor" in respect of the amount disbursed in the year 2013 and there is no question of entertaining a fresh petition on the same cause of action with regard to the same amount of disbursement of the loan. 19. It may further be pointed out that the petitioner later on filed C. A. No. 250 of 2018 in C. P. (IB) No. 122/Chd/Pb/2018 seeking recalling/reviewing of the order dated May 23, 2018. That application was also dismissed by this Tribunal on August 14, 2018. Even this order has been concealed in the instant petition. The petitioner has disclosed about the pendency of the criminal complaints under section 138 of the Negotiable Instruments Act and also the winding up petition in the hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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