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TMI Blog2020 (2) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... is contention of the Corporate Debtor is unsustainable. e Financial Creditor has established beyond doubt that the loan was duly accepted and duly received by the Corporate Debtor and that there has been default in payment of the Debt by the Corporate Debtor. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... r for the year ending on 31.03.2015 and 31.03.2016 which clearly testifies to the existence of "Debt" on the part of the Corporate Debtor. The Financial Creditor also provided copy of statement of account for the year ending on 31.03.2017. 4.5 The Financial creditor also enclosed a copy of the bank statement and Bank Certificate which shows that the amount has been given to the Corporate Debtor. 5. The copy of the Petition was served on the Corporate Debtor in advance. The Corporate Debtor's Leaned Counsel appeared when matter was listed on 27.02.2018. 6. Submission by the Respondent/Corporate Debtor:- 6.1 The Corporate Debtor has challenged the maintainability of this petition on various grounds. The foremost contention of the Corporate Debtor is in view of provision of Insolvency and Bankruptcy Code, 2016, the alleged debt claimed by the petitioner is not a 'debt' within meaning of section 3(11), therefore the subject matter of the Petitioner is not 'financial debt' within meaning of section 5(8) and there is no default as defined in section 3(12) of the Code. 6.2 The foremost contention of the Corporate Debtor is that Mr. Perbjyot Wariah is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t I, particulars of the corporate debtor in Part II, Particulars of the proposed interim resolution professional in Part III, particulars of the financial debt in Part IV and documents, records and evidence of default in Part V. Under Rule4 (3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of section 7 (5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uot;. However, from the Loan acceptance letter itself is evident that the money has been borrowed with an interest of 18% per annum by the Corporate Debtor. Also Bank statements placed on record shows that money was transferred form Bank account of Financial Creditor. Same has also been Certified by the Bank of Financial Creditor. Hence, no further proof is required in this regard. Also, as per section 5(7) of IBC, Financial Creditor means any person to whom a financial debt is owed and includes a person to whom such a debt is legally assigned or transferred. Hence this contention of the Corporate Debtor is unsustainable. 10. The dispute raised by the Corporate Debtor with respect to the debt amount is also not maintainable because the amount claimed is corroborated by the Statement of Accounts of the Financial Creditor as on 31.03.2014. Otherwise also, after the judgement of the Hon'ble Supreme Court in Swiss Ribbons P. Ltd. v. Union of India [2019] 101 taxmann.com 389/152 SCL 365 upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a 'dispute' as far as Section 7 petition is concerned. As soon as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI) Act, 2002; iv. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the Corporate Debtor. 16. Notwithstanding the above, during the period of moratorium:- i. The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; ii. That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; 17. The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. 18. Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency & Bankruptcy Board of India (Insolvency Resolution Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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