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TMI Blog2019 (10) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... d Applicant/Financial Creditor has filed this application on 27.09.2018, which is within the limitation period. The application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete and it is within limitation. It further appears that there is default in non-payment of the debt owed by the corporate debtor, which is more than Rs One Lakh to trigger the CIRP against the Corporate Debtor and the applicant has annexed sufficient documentary evidence to show that there is default on behalf of the corporate debtor. Therefore, application filed U/S 7 of IBC deserves to be admitted. Application admitted - moratorium declared. - COMPANY PETITION (IB) NO. 353/ALD/2018 - - - Dated:- 24-10-2019 - ABNI RANJAN KUMAR SINHA, MEMBER (J) For the Appellant : Nishant Mehrotra, Advocate For the Respondent : Prashant Kumar and Sarvesh Tiwari, Advocates ORDER Abni Ranjan Kumar Sinha, Member (J) 1. The present petition is filed under Section 7 of Insolvency and Bankruptcy Code, 2016 read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 by the petitioner/financial creditor i.e. Indiabulls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the borrower and the amount has been disbursed by the financial creditor in the account of the M/s. Sravhit Trust and the corporate debtor being the owner of the property has only executed the loan documents with the financial creditor and not a single penny has been utilized by the Corporate Debtor against the amount disbursed by the financial creditor. v. Further stated that as per Sec 13(2) notice, the account was declared NPA on 11.11.2016 but as per the records of the financial creditor, the account of the Corporate Debtor defaulted on the loan account on 13.12.2016. vi Further stated that the financial creditor has also filed case before Learned J.M. (1st class) at district court Gurugram under Section 138 of NI Act, against one of the co-director of the Corporate Debtor, which has concealed the same before this Hon'ble Tribunal and also submitted that the applicant company is always interested in settling the dues of the financial institution and it was agreed between the parties that the financial Institution shall sell the properties mortgaged in the loan account as per the provision of properties mortgaged in the loan account as per the provision of SAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de board resolution dated 30.11.2015 is annexed as Annexure A-7 of the Application and the memorandum of entry recording deposit of title deeds executed on 03.12.2015 is annexed as Annexure A-8 of the Application. iv. The copy of the record of default available with the credit information company CIBIL is annexed as Annexure A-10 of the Application. v. The copies of entries in the statements of Accounts and foreclosure of the loan facilities of the Corporate Debtor is annexed as Annexure A-11 of the Application, vi. The Copy of the Legal Notices dated 05.12.2016 sent to the Corporate Debtor for recalling loan facilities sanctioned to the Corporate Debtor is annexed as Annexure A-11 of the Application. 6. I have gone through the contents of the petition, the counter affidavits filed by the respondent and reply to the counter affidavit filed by the petitioner and documents annexed there of. 7. The learned counsel for the respondent at Para 3 of the written submission stated that the alleged borrower of the financial creditor is being the trust is governed by the provisions prescribed under Indian Trust Act, 1882 and Charitable Endowments Act, 1890 and he does not fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under subsection (1) in such form and manner and accompanied with such fee as may be prescribed. (3) The financial creditor shall, along with the application furnish-- (a) record of the default recorded with the information utility or such other record or evidence of default as may he specified; 10. Mere plain reading of the provision shows that in order to make an application under Section 7(1) the financial creditor/petitioner is required to establish: a. Whether there is duly established financial debt. b. Whether there is default in payment by the corporate debtor. c. Whether the documents attached with the applicant shows that there is default in payment of debt and name of resolution professional is proposed to act as IRP and no disciplinary proceedings are pending against the proposed resolution professional. 11. At this juncture, I would like to refer certain decisions: The Hon'ble Supreme Court in Innoventive Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lvency) No. 1021 of 2019 dated 01.10.2019 stated: ................. it is clear that once the Adjudicating Authority is satisfied on the basis of records that the debt is payable and there is default, the Adjudicating Authority is required to admit the application. 14. In the light of the aforesaid decisions and provisions of law, when this Adjudicating Authority shall consider the case in hand, then found that by producing the document which is attached with application filed by the applicant, the applicant has succeeded to establish that the loan was granted to corporate debtor jointly along with Sarvhit Trust and Emm Vee Infrastructures (India) Pvt. Ltd. and as per annexure A-6 which is related to the computation relating to all the defaults amounts and days of 15. At this juncture, I would also like to mention the fact that the corporate debtor has taken the plea that the date of NPA is 11.11.2016 but in the petition under the heading particulars of financial debt the financial creditor has mentioned the date of default as on 13.12.2016, therefore, the corporate debtor submitted that the account is not being properly maintained. 16. At this juncture, i have ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; ii. Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; iii 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002(54 of 2002); iv. The recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. It is further directed that: (i) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during the moratorium period (ii) The provision of sub-section (I) shall not apply to such transaction as may be notified by the Central Government in consultation with any financial sector regulator. 21. The IRP shall comply with the Provision of Section 13(2), 15, 17 18 of the Code. Further, the Directors, Promoters or any person associated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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