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TMI Blog2021 (5) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted. The grounds as raised by the Applicant in the present IA/167(CHE)/2021 and IA/168(CHE)/2021 do not hold much, since the affidavit not having been notarized is only a procedural irregularity and it is a curable defect. This irregularity can be rectified by the Applicant at any point of time. It is also pertinent to note here that the proviso to Section 7(5) of IBC, 2016 states that this Adjudicating Authority before rejecting the application under sub-clause (b) of sub-section (5) of Section 7 of IBC, 2016 shall give a notice to the Applicant to rectify the defect in the application - the Financial Creditor has proved existence of 'debt' and 'default', with respect to outstanding due against the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies by the Financial Creditor, the Corporate Debtor had executed three demand promissory notes and security delivery letter in respect of credit facilities. In addition to the aforesaid documents, Financial Creditor and Corporate Debtor entered into a Term Loan Agreement for Rupees Twenty Five Crore. On 27.08.2015, two Directors of the Corporate Debtor Company had also executed a deed of Guarantee in favour of Financial Creditor. The above mentioned credit facilities were originally by the Corporate Debtor availed in the name of M/s. Beach Minerals Company India Limited and had subsequently changed its name into M/s. Alba Industries Limited. 3. The learned counsel further submitted that since the Corporate Debtor defaulted repayment in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reviving the business in a very successful manner and that the business activity is in temporary trouble due to the policies of the State and Central Governments. The respondent is also taking hectic steps to raise funds from other sources and disposing valuable lands only to settle the loan account of the petitioner. The Respondent is ready to submit a very detailed plan to settle the loan with the petitioner. 6. Thereafter, the learned counsel for the Corporate Debtor filed additional counter on 12.02.2021, submitted that one of the partnership firms namely M/s. Blue Metals Company had availed loans from the applicant-bank and settled. The same, further, another business house involved in mining industry administered by the elder b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank has attached several certificates and an affidavit under the Banker's Book Evidence Act, 1891 executed on 08.11.2019 which were not sworn before Notary Public or before an Advocate in terms of Rules 127 of the NCLT Rules, 2016. 10. IA/168/2021 filed pursuant to Rule 11 of National Company Law Tribunal Rules, 2016 by the Applicant Company, seeking for dismissal of main application. The Learned Counsel for Applicant/Respondent averred that the Respondent Bank had disbursed a total sum of ₹ 24,96,61,723/- on 16.11.2015. It is further submitted that the amount repaid by the Company is as follows: 11. Thus, the applicant company has paid ₹ 2,37,76,680/- (i.e. more than the sum total of 31 EMIs - each EMI being S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 127 of NCLT Rules 2016 states that every affidavit should be sworn or affirmed by a Notary or an Affidavit, noncompliance of the same would not entail dismissal of an Application filed under Section 7 of IBC, 2016. Since the Rules enumerated under NCLT Rules, 2016 cannot override the provisions of IBQ 2016. 14. Taking into consideration above facts, the Financial Creditor has proved existence of 'debt' and 'default', with respect to outstanding due against the Corporate Debtor. Therefore, this Insolvency and Bankruptcy Application IBA/43/2020 stands admitted by appointing Mr. Mr. Nagalingam Muthiah (Regn. No. IBBI/IPA-001/IP-P00774/2017-18/11347) as Interim Resolution Professional, the consent letter dated 07.11.2019 is e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution plan under sub-section (1) of section 31 of IBC or passes an order for liquidation of corporate debtor under section 33 of IBC, as the case may be. V. That the public announcement of the corporate insolvency resolution process shall be made immediately as specified under section 13 of IBC. VI. That this Bench hereby appoints Mr. Nagalingam Muthiah (Regn. No. IBBI/IPA-001/IP-P00774/2017-18/11347), Room No. 708, 7th Floor, Shivalaya Buildings, A Block, Ethiraj Road, Egmore Chennai-600008, E-Mail: mnaga2050@gmailcom, Mobile No: 9789055123 as Interim Resolution Professional to carry out the functions as mentioned under IBC. Fee payable to IRP/RP shall be in compliance with the IBBI Regulations/Circulars/Directions issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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