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TMI Blog2019 (3) TMI 1910X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble NCLAT remitted with a direction to admit it. Also, the FC has compiled with all the requirements to be meted out as per Section 7 (3) of the Code of 2016 and name of the Resolution Professional (in short, RP) has been proposed. Form 2 produced along with the application proves that there is no disciplinary proceeding pending against the RP. Annexure-2 at page 67 of the application s the Form 2. Mr Chhedi Rajbhar is the insolvency professional proposed by the applicant in the application. Application admitted - moratorium declared. - Dy. NO.733/2017 - - - Dated:- 8-3-2019 - Hon ble Mr. Jinan K.R., Member(J) For the Financial Creditor : Mr A.K. Rai, Advocate ORDER This application under Section 7 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as the Code of 2016 ) read with Rule 4 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as the Rules of 2016 ) has been preferred jointly by (1) Ms. Neha Himatsingka and (2) Mr. Kanishka Himatsingka, the Financial Creditors (hereinafter collectively referred to as the FCs ) seeking initiation of Corporate Insolvency Resolution P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also the case of the FCs that there is no proceeding pending against the IRP, so suggested by the FCs and that the application is complete in all respects. Since the application satisfies all the conditions necessary for initiation of CIRP, therefore, the FCs urge this authority to initiate CIRP and proceed against the CD in accordance with the prescription rendered in the Code of 2016 and the Rules framed for execution of mandates in the Code. 7. The respondent/CD entered appearance and filed reply affidavit contending, in brief, the following: i) The present application is not maintainable for reasons more than one. In that connection, it has been submitted that the present management of the CD (which would be collectively referred to as BK Group) never/over committed any default in repayment of loans in question requiring the FCs to Initiate a proceeding U/s 7 of the Code of 2016. ii) In that connection, it has been submitted that the persons in the management of CD up to 15-12-2014 were the FCs and their father/father in Jaw (who would be collectively referred to as RHS Group) and they (RHS Group) had transferred their shareholdings in the CD together with certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while management of the CD) to say that the present management of the CD committed default in repayment of debts that have become due to the FCs. 8. The application as well as the documents annexed therewith did not disclose any default having been committed by the CD in repayment of the dues to the FC. Since the FC have miserably failed to prove that the CD committed any default in repayment of loan to the FC, the application requires dismissal. 9. Moreover, the debt in question is barred by limitation and, therefore, the application is not maintainable. A Director of a company cannot give loan to its own company unless a declaration is furnished stating that the amount is not being given out of the funds acquired by him by borrowing or accepting from others. Such a declaration is not furnished to the CD. The debt claim by the FC is not a financial debt as laid down under Section 5 (A) of the Code of 2016. Upon the aforesaid contentions, the CD prays for passing an order for dismissal of the application. 11. Vide order dated 19.03.2018, my learned predecessor has dismissed this application. Aggrieved by the order of dismissal, the FC has preferred an appeal, CA (AT) (Inso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with a direction to admit it I have no other alternative other than to admit the application as prayed for by the FC. 15. Accordingly, this application is liable to be admitted. On a perusal of the application I am also satisfied that the FC has compiled with all the requirements to be meted out as per Section 7 (3) of the Code of 2016 and name of the Resolution Professional (in short, RP) has been proposed. Form 2 produced along with the application proves that there is no disciplinary proceeding pending against the RP. Annexure-2 at page 67 of the application s the Form 2. Mr Chhedi Rajbhar is the insolvency professional proposed by the applicant in the application. 16. Therefore, the application filed by Ms. Neha Himatsingka and Mr. Kanishka Himatsingka under Section 7 of the Code of 2016 is liable to be admitted. Accordingly, the application is admitted upon the following order: ORDER (i) The petition filed by the Financial Creditor under Section 7 of the insolvency Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate insolvency Resolution Process in respect of M/s Himatsingka Resorts Private Limited. (ii) I hereby declare a Moratorium an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dress at C. Rajbhar Co., 40, Strand Road, 2nd Floor, Room No.49, Kolkata-700001 with Registration No. IBBI/IPA-001/IP- POO129/2017-18/10271 (Mobile No.9831182472) with e-mail ID- [email protected] is he hereby appointed as interim Resolution Professional for ascertaining the particulars of creditors and convening a meeting of Committee of Creditors for evolving a resolution plan. (xi) The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of Creditors and shall identify the prospective Resolution Applicant within 105 days from the insolvency commencement date. (xii) Registry is hereby directed under Section 7(7) (a) of the I.B. Code, 2016 to communicate the order to the Financial Creditor, the Corporate Debtor and to the Interim Resolution Professional by Speed Post as well as through e-mail. (xiii) The Interim Resolution professional is directed to strict compliance of model timeline for CIRP as provided under Regulation 40A of IBBI (IRP for Corporate Person) Regulation, 2016. 17. List the matter on 12.04.2019 for the filing of the progress report. 18. Certified copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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