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TMI Blog2020 (1) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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 - the application is found to be complete in all respect. Hence it does not warrant any rejection or dismissal. In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company has acknowledged the debt - In the instant case, the documents produced by the Financial Creditor clearly establish the debt and there is default on the part of the Corporate Debtor in payment of the financial debt - the petitioner/financial creditor having fulfilled all the requirements of Section 7 of the Code, the instant petition deserves to be admitted. Application admitted - moratorium declared. X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, plant and machinery and stores and spares lying in the possession of the corporate debtor created under hypothecation agreement dated 20.12.2014. That, the financial creditor holds first and exclusive charge on mortgaged properties also. That, the present Insolvency Resolution Application is filed under Section 7 of the IB Code, 2016 for the purpose of initiating corporate insolvency resolution process against the corporate debtor since it has lost its substratum and is unable to repay outstanding debt. That, the corporate debtor has already committed default of its debt towards the financial creditor by non-payment of instalment and/or interest of the various financial facilities availed through its Dhebar Road Branch, Rajkot, 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 1-7 2 Affidavit in support of form 1 8 3 Vakalatnama 9 4 Power of attorney 10-12 5 Master data of corporate debtor 13 6 Consent of interim insolvency resolution professional and registration certificate 14-16 7 Working for computation of amounts of default ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is found that from time to time the corporate debtor has made payments towards the outstanding loan and thus acknowledged the debt. That, the application filed by the financial creditor is well within limitation. That, the documents filed along with the application is sufficient to prove that there exists financial debt. 13. On perusal of the records it is found that the letter of authority dated 12.09.2018 issued by General Manager of the applicant bank authorising Mr. S.K. Misra is proper and valid. 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 judgement of the Hon'ble Supreme Court in "Innoventive Industries Ltd. vs. ICICI Bank & Anr. (2018) 1 SCC 407" the Hon'ble Supreme Court while explaining section 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating 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 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 may be. 15. It is also held in Mobilox Innovations (P) Ltd. vs. Kirusa Software (P) Ltd. (2018) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and placed at page No. 14-15 of the application where declaration is made that no disciplinary proceeding is pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 21. In 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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