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TMI Blog2020 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... ial creditor and there is default on the part of the corporate debtor - That, the application is found to be complete in all respect. Hence it does not warrant any rejection or dismissal. The application under section 7 (2) of the IB Code is complete in all respects and there is debt due to the Financial Creditor and there is default on the part of the corporate debtor . Hence, there is no alternative but to admit the application in absence of any infirmity - Application admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... Branch, Surat, Gujarat State. 8. The applicant bank has submitted copy of the following documents in support of their claim: - Sl. No. Particulars Page Nos. 1 Form 1 1-14 2 Power of attorney, dated 04.06.1992 and authority letter, dated 01.08.2018 13-15 3 Sanction details, dated 17.12.2014, of cash credit facility of ₹ 4.50.00,000/- 19-24 4 Sanction letter, dated 18-12-2015, for renewal cum enhancement of cash credit limit 25-30 5 Resolution passed at the meeting of the Board of Directors of respondent company, dated 19.12.2014 31-32 6 Demand promissory note of ₹ 4,50,00,000/-, dated 23.12.2014 34-46 7 Hypothecation agreement, dated 23.12.2014 34-46 8 Letter of guarantee, dated 23.12.2014 47-55 9 General undertaking 56-60 10 Instrument relating to deposit of title deeds, dated 24.12.2014 61-79 11 Deposit of title deeds, dated 24.12.2014 80-83 12 Certificate of Registrar of Companies, Gujarat, Ahmedabad 84 13 Extract of resolution passed at the meeting of the Board of Directors of the respondent company on 18.12.2015 85-85A 14 Memorandum of modification of hypothecation agreement, dated 18.12.2015 86-107 15 Demand promissor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the statement made by the applicant, could not succeed to defend himself because no convincing documents are being filed so as to believe that the corporate debtor is not a defaulter. 14. In view of the above discussions, the Adjudicating Authority is of the considered view that there is a debt due to "financial creditor" and there is default on the part of the corporate debtor. In view of the judgment of the Hon'ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank [2017] 143 SCL 625, the Hon'ble Supreme Court while explaining sections 7 and 8 of the IB Code, observed and held as under: - "27. The scheme of the Code is to ensure that when a default takes place, in the sense that a 'debt' becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3 (12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of "debt", we have to go to section 3 (11) which in turn tells us that a debt means a liability of obligation in respect of a "claim" and for the meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied 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 complete, in which case it may give notice to the applicant to rectify the defect within seven days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within seven days of admission or rejection of such application, as the case maybe." 15. It is also held in Mobilox Innovations (P) Ltd. v. Kirusa Software (P.) Ltd. [2017] 144 SCL 37 (SC) as under: - "38…… In the case of a corporate debtor who commits a default of financial debt, the adjudicating authority has merely to see the records of the information utility or other evidences produced by the financial creditor to satisfy itself that a default has occurred. It is of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the aforesaid background and as also discussed above, the application under section 7 (2) of the IB Code is complete in all respects and there is debt due to the "Financial Creditor" and there is default on the part of the "corporate debtor". Hence, there is no alternative but to admit the application in absence of any infirmity. 22. In view of the above, the petitioner/financial creditor having fulfilled all the requirements of section 7 of the Code, the instant petition deserves to be admitted. 23. The petition is, therefore, admitted and the moratorium is declared for prohibiting all of the following in terms of sub-section (1) of section 14 of the Code: - (i) 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; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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