9911796707
TMI Blog2019 (8) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding the fact that registered offices of both the entities are situated at Delhi and the said act would only apply to the territory of Punjab and Haryana - The legal position has been put beyond doubt that Section 238 of the Code contains a non-obstante clause which is in the 'widest terms possible'. Therefore, the argument raised on behalf of Corporate Debtor is not sustainable and there are no hesitation to reject the same. ll requirements of Section 7 for the initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, it has been submitted that the petition as prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 (2) of IBC is complete in all respects - A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m May, 2016 to 20.01.2017. In January, 2017, the Respondent issued a cheque amounting to ₹ 10,00,000/- towards part discharge of its payment obligation. However, upon presentation same was also dishonoured due to 'insufficiency of funds'. 4. Feeling aggrieved from the aforesaid act of the Respondent, petitioner issued a legal notice dated 16.04.2019 (Annexure I-10) through its counsel to the Respondent, seeking payment of an amount of ₹ 11,64,14,000/- (Rupees Eleven Crores Sixty Four Lakhs Fourteen Thousand Only). Afterwards the Respondent made part payment of ₹ 75,00,000/- on 06.05.2019 but did not discharge its entire obligation. Ultimately aforesaid cheque amounting to ₹ 9,85,00,000/- which was given by the Respondent to the petitioner to provide comfort and an assurance of repayment, presented by it for encashment which was also dishonoured on 27.05.2019 with a reason of 'Account closed' (Annexure I-13). 5. The amount claimed to be in default and the details of default have been given in sub para 2 of Part-IV and the same reads as under: 2. AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for triggering the Corporate Insolvency Resolution Process. 9. The Financial Creditor has placed on record numerous proof of amount disbursed as loan to the Respondent Company. The material on record and the documents clearly depict that the loan was sanctioned and disbursed. Copies of the aforesaid cheques have been placed on record. Respondent company utilized and enjoyed the loan facility. 10. It is evident that after taking loan subsequently the Corporate Debtor repaid a part of the principal amount of ₹ 1,00,00,000/- on 13.04.2015 and the total outstanding debt was ₹ 9,85,00,000/. Further the Corporate Debtor issued an undated cheque bearing No. 186195 amounting to ₹ 9,85,00,000/- drawn on Axis Bank to the petitioner to discharge is outstanding liability. However, upon presentation the same was dishonoured for the reason of 'Account Closed'. It is also clear that the Corporate Debtor continued to make quarterly payments towards interest till April, 2016 which is reflected in the 'Confirmation of Accounts' of the Corporate Debtor. It goes to show that money given was for time value of money and the petitioner comes within the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d vis-a-vis action taken under the later Central enactment. Also, Section 238 of the Code reads as under: 238. Provisions of this Code to override other laws.-The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. It is clear that the later non-obstante clause of the Parliamentary enactment will also prevail over the limited non-obstante clause contained in Section 4 of the Maharashtra Act. For these reasons, we are of the view that the Maharashtra Act cannot stand in the way of the corporate insolvency resolution process under the Code. Rejecting the argument that Maharashtra Act kept the debt in temporary abeyance for one year, Hon'ble the Supreme Court went on to observe The notification under the Maharashtra Act continues for one year at a time and can go upto 15 years. Given the fact that the timeframe within which the company is either to be put back on its feet or is to go into liquidation is only 6 months, it is obvious that the period of one year or more of suspension of liability would complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) .................. 17. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code. We are satisfied that a default amounting to lacs of rupees has occurred. As per requirement of Section 4 of the Code if default amount is one lac or more then the CIR Process would be issued. The application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. 18. The Financial Creditor has proposed the name of Resolution Professional, Mr. Sanyam Goel with the address 938, Basement Office, Sector-40, Gurugram, Haryana-122002 and email id - [email protected]. His registration number is IBBI/IPA-002/IP-N00138/2017-18/10397. He has filed his written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Process for Corporate Persons) Regulations, 2016. 23. The Interim Resolution Professional shall perform all his functions religiously and strictly which are contemplated, interalia, 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 legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the affairs of the Corporate Debtor. In case there is any violation committed by the ex-management or any tainted/illegal transaction by ex-directors or anyone else the Interim Resolution Professional/Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Reso ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
