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TMI Blog2018 (11) TMI 1741X X X X Extracts X X X X X X X X Extracts X X X X ..... be a financial creditor has filed the instant Petition 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 Digamber Buildcon Pvt Limited (for brevity the 'corporate debtor'). It is appropriate to mention that the 'financial creditor' is a company incorporated under the provisions of the Companies Act, 1956. It has its registered office at Edelweiss House, Off CST Road, Kalina, Mumbai - 400098 and has filed this petition acting through its branch at 603-Unit No. 10 12, Upper Ground Floor, Mercantile House, 15 Kasturba Gandhi Marg, New Delhi - 110001. 2. The Corporate Debtor - Digamber Buildcon Pvt Ltd was incorporated on 12.10.2006. The identification number of the Corporate Debtor given is CIN U70109DL2006PTC154732 and its registered office is situated at B-292, Chandra Kanta Complex, Shop No. 8, Near Metro Pillar No. 161, New Ashok Nagar, New Delhi - 110096. The authorised share capital of the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood due and payable as on 31.03.2018 in connection with the Loan together with interest. 7. Further it is submitted by the Petitioner that the Financial Creditor issued a notice dated 27.07.2018 (Annexure 11 (Colly) 9.) for invocation of Personal Guarantee to the Corporate Debtor-Respondent demanding to pay a sum of ₹ 9,14,34,687/- (Rupees Nine Crore Fourteen Lakhs Thirty Four Thousand Six Hundred and Eighty Seven Only) together with interest and other charges thereon with effect from 01.04.2018 at the given contractual rates upon the footing of compound interest until payment. 8. The precise case of the Petitioners is that the financial debt to the tune of ₹ 9,14,34,687/- (Rupees Nine Crore Fourteen Lakhs Thirty Four Thousand Six Hundred and Eighty Seven Only) has accrued in favour of the Financial Creditors as per the Loan Agreement dated 25.07.2017 (Annexure 6). 9. The Financial Creditor has proposed the name of Mr. Udayraj Patwardhan as the Insolvency Professional with the address 2 Patwardhan Apartments, Patil Colony #3, College Road, Nashik-422005, E-mail-id udayrai [email protected]. His registration number is IBB1/1PA-001/1P-N00024/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the documents, records and evidence of default. The details of the documents and securities as mentioned in Para 4 have been stated. 13. The entries and statement of account depicted in the Account of Digamber Buildcon Private Limited as maintained by the Financial Creditor pertaining to the Rupee Term Loan along with the calculation of the arnount till 31.07.2018 has been annexed (ANNEXURE IO(COLLY)). A copy of the CRILC (Central Repository of Information on Large Credits) Report dated 20.04.2018 pertaining to the default of the Corporate debtor in respect of Debt qua the Financial Creditor has been attached. The same is reflected at serial No. 180 (Annexure-9). 14. A reply to the petition is filed by one Mr. Arun Singh, being the Authorized signatory of the Respondent- Corporate Debtor, who has been given authority vide Board Resolution dated 20.08.2018. Rejoinder to the Reply was filed by the Petitioner-Financial Creditor on 10.09.2018. 15. In the Reply filed on 12.09.2018 the Respondent-Corporate Debtor has raised certain objections to the petition filed by the Financial Creditor. One of the preliminary objection raised is that the Petitioner has filed the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is complete 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 along with all the minute details. There is overwhelming evidence to prove default and name of the resolution professional has also been clearly specified. 20. Having heard the learned counsels for the Financial Creditor and Corporate Debtor and having perused the paper book with their able assistance 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 financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3) . 7(4) 7(5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government and a surety in a contract of guarantee to a corporate debtor. 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. 25. 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 follow best practices and principles of fairness which are to apply at various stages of Corporate Insolvency Resolution Process. His conduct should be above board independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corporate Debtor are under l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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