9911796707
TMI Blog2021 (2) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor") under section 7 of the Insolvency and Bankruptcy Code 2016 (In short, 'IB Code 2016') read with Rule 4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, 'IB Rules 2016'). The Financial Creditor has prayed for initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. 2. Brief averments of the application are that the Applicant is a partnership firm. The Applicant had lent loan to the tune of Rs. 50,00,000/- (Rupees Fifty Lakh) on 20.10.2015 to the Corporate Debtor and the Interest payable at the rate of 25.2% per annum on the principal amount. The Corporate Debtor has failed to repay the principal and interest dues. The Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... creditor, as may be notified by the Central Government] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Provided that for the financial creditors, referred to in clauses (a) and (b) of subsection (6A) of section 21, an application for initiation corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such creditors in the same class or not less than ten per cent of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub-section (3): Provided that if the Adjudicating Authority has not ascertained the existence of default and passed an order under sub-section (5) within such time, it shall record its reasons in writing for the same. (5) Where the Adjudicating Authority is satisfied that - (a) a default has occurred and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be; 5. We have heard and perused the documents, affidavits, written statements and oral submissions by both the Counsels. As discussed above, debt and default to be proved for admission of an application under Section 7. The Applicant has filed statement of account of State Bank of India (SBI) for the period from 01.04.2015 to 01.03.2017 (Page No. 26) along with the application. As per the above statement of account, a sum of Rs. 50,00,056/- was paid into the account of Mr. A. Francis on 20.10.2015 through RTGS. Subsequently, another statement of account (SBI) for the period from 02.04.2018 to 31.08.2019 (Page No. 46) reflects that on 17.08.2018, a sum of Rs. 76,250/- was paid by Mr. A. Francis and again on 12.11.2018 another sum of Rs. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant. It is clearly mentioned that Mr. A. Francis has obtained loan and towards that loan he has offered his property as mortgage to the applicant herein. There is no Privity of Contract between the applicant and the Corporate Debtor. The Applicant failed to satisfy this Adjudicating Authority regarding disbursement of loan into the accounts of the Corporate Debtor. The loan alleged to have been availed by the Corporate Debtor is not reflected in the statement of accounts filed along with the application. 7. The entire transaction was on 20.10.2015. The argument of counsel for Applicant solely relies on the unregistered Memorandum of Understanding (MoU) dated 05.07.2019 wherein he states that since the Corporate Debtor has execute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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