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TMI Blog2021 (8) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ess (CIRP) against Sangeeta Aviation Services Private Limited (hereinafter called "Corporate Debtor") alleging that the Corporate debtor committed default in making payment to the Financial Creditor. This petition has been filed by invoking the provisions of Section 7 Insolvency and Bankruptcy Code, 2016 (hereinafter called "Code") read with Rule 4 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The present petition is filed before this Adjudicating Authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs. 1,32,25,753/- and the Financial Creditor sought resolution. 3. The submissions of the Financial Creditor are as follows:- i. During the May 2017 and on 22.03.2017 the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Process. Hence, the particulars given in Part II at Sr. No. 6 are not in conformity with the details required to be filled in. ii. In Form 2 which is a Statutory form annexed at page Nos. 16-17 of the Applicant, the proposed IRP has made glaring discrepancies and errors such: a. The name should be proposed by the Applicant i.e. Gannon Dunkerley & Co. Ltd. However, it has mentioned that, '...have been proposed as the Interim Resolution Professional by Mr. Manoj Kumar Mishra, Advocate, Bombay High Court and Insolvency Professional in connection with the...' b. The IRP has failed to make disclosures in accordance with the code of conduct for Insolvency Professionals as set out in the IBBI (Insolvency Professionals) Regulations, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor. The Corporate Debtor, therefore, submitted that the Financial Debtor's claim is based on the order passed by the Hon'ble Bombay High Court. The applicant, therefore, miserably failed to establish that it is a Financial Creditor under Section 5(7) and the amount advanced by the Financial Creditor is a Financial Debt under any of the sub-clauses 'a' to 'i' of Section 5(8) of the IBC, 2016. iv. The Corporate Debtor further says and submitted that in absence of satisfaction of necessary ingredient to claim as a Financial Debt, the applicant has to clinchingly establish that the amount advanced by it had time value of money to fulfil the condition as prescribed in 5(8)(a) of the IBC, 2016 or the Applicant has to establish that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion: i. Whether the present Company Petition filed by Financial Creditor on the basis of a decree passed by the Hon'ble Bombay High Court against the Corporate Debtor is maintainable? ii. Whether the defence taken by the Corporate Debtor is legally sustainable in law? 2. Heard both sides and perused the record. The learned counsel appearing for the Financial Creditor submitted that the Financial Creditor has advanced an amount of Rs. 1 crore to the Corporate Debtor in the month of March and May 2017 respectively and the Corporate Debtor in receipt of the said amount executed two bills of exchange dated 22.03.2017 and 31.05.2017. 3. Counsel for the Financial Creditor further submitted that subsequently the Corporate Debtor failed to Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides that the above Company Petition is filed basing on a decree passed by the Hon'ble Bombay High Court against the Corporate Debtor. The advocate appearing for the Financial Creditor cited the above ruling of Hon'ble NCLAT in which the Hon'ble NCLAT held that a Company Petition filed on the basis of a decree is a Financial Debt within the meaning of the Code. All the above pleas of the Corporate Debtor with regard to the interest etc. are beyond the scope of this petition since this Tribunal has no power to decide the validity or correctness of a decree passed by the Hon'ble High Court. The decree passed by the Hon'ble Bombay High Court is binding on the Corporate Debtor. If at all the Corporate Debtor is aggrieved against the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions as mentioned under the Insolvency & Bankruptcy Code, 2016. c. The Financial Creditor shall deposit an amount of Rs. 5 Lakh towards the initial CIRP cost by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. d. That this Bench hereby prohibits 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; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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