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TMI Blog2019 (6) TMI 1565X X X X Extracts X X X X X X X X Extracts X X X X ..... , the debt claimed in the present application includes both the component of outstanding principal and the consideration amount - thus, not only the present claim comes within the purview of 'Financial Debt' but also the applicant can clearly be termed as 'Financial Creditor' so as to prefer the present application under Section 7 of the Code. An application under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. What is material is that the default is at least 1 lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable - It is thus seen that the applicant 'financial creditor' has placed on record evidence in support of the claim as well as to prove the default - The corporate debtor is entitled to point out to the Adjudicating Authority that a default has not occurred; in the sense that a debt, which may also include a disputed claim is not due i.e. it is not payable in law or in fact. However, despite service respondent preferred to remain absent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the short-term loan for an amount of ₹ 43,00,000/- disbursed to the respondent company on 24.08.2018. 4. It is the case of the applicant that on 24.08.2018 the Corporate Debtor had approached the Financial Creditor for a short-term loan of INR 43,00,000/- for urgent purchase of 16000 pieces of A+ Grade Panels for 32 LED TVs from a third-party vender. 5. It is also the case of the applicant that the Corporate Debtor also executed a Memorandum of Understanding in its own letter head promising the Financial Creditor in writing to repay the same with lump-sum onetime interest payment /consideration /profit of INR 5,00,000/- on or before 29.08.2018 and by way of security issued two cheques both dated 29.08.2018 separately towards repayment of the said principal and interest/consideration amount. The applicant has placed on record true copy of MOU and attested copy of bank statement of the financial creditor evidencing of the disbursal of the financial debt including the copies Cheques issued by the corporate debtor. 6. Thereafter the Financial Creditor, the sole proprietor of Uma International Trading Company, disbursed the loan amount of ₹ 43,00,000/- on 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and other facts as prescribed have been furnished. The applicant bank has annexed to the application detail particulars of 'financial debt' including documents, records and evidence of default as required under sub-section 3 (a) of Section 7 of the Code. On a bare perusal of the Form reveals that the same is complete in all respect and there is no infirmity in the same. 15. Sub-section (3) (b) of Section 7 mandates the financial creditor to furnish the name of an Interim Resolution Professional. In compliance thereof the applicant has proposed the name of Mr. Chandra Kumar Jain, for appointment as Interim Resolution Professional having registration number IBBI/IPA-001 / IP-P00214/ 2017-18 / 10414 resident of 18, Rabindra Sarani, Poddar Court, Gate No. - 2, 7th Floor, Room No. 9, Kolkatta - 700001. with email - id [email protected]. Sh. Chandra Kumar Jain has agreed to accept the appointment as the interim resolution professional and has signed a communication dated 16.01.2019 in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceedings are pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II. Application is complete, and III. No disciplinary proceeding against the proposed IRP is pending. 21. Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited V. Kirusa Software Private Limited reported in AIR 2017 SC 4532 at Para 19 has observed that: Once the adjudicating authority / Tribunal is satisfied as to the existence of the default and has ensured that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional, it shall admit the application . 22. An application under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. What is material is that the default is at least 1 lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. 23. It is seen that the applicant, had disbursed the loan amount in the bank account of the corporate debtor. It is also seen from the MOU that the corporate debtor agreed to repay the principal amount with consideration amount of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency Bankruptcy Code, 2016. 31. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14 (1) (a), (b), (c) (d) of the Code. Thus, the following prohibitions are imposed: (a) 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; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 32. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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