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TMI Blog2019 (10) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... r from Kolkata Port Trust which as per its claim only has been illegally terminated by the Kolkata Port Trust and which has resulted into default in the payment of the loan taken by the Corporate Debtor - MOU consists of two transactions i.e. one is related to granting of loan and other is in regard to formation of SPV. From the perusal of MOU, it is evident that both these transactions are independent of each other. In any case, transaction loan has not been made for equity, hence, it remains of the nature of financial debt. Filing of petition by all the three entities independently or by the Financial Creditor on behalf of other two parties only when such purpose would have assigned the debt payable by the Corporate Debtor to them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Only) with interest and the default as stated took place from January, 2016. 2. The relevant facts are that the Financial Creditor and the Corporate Debtor entered into memorandum of understanding on 10 December, 2015 whereby the Corporate Debtor requested for financial assistance to the tune of ₹ 2,50,00,000/- (Rupees Two Crore Fifty Lakh Only) which was provided by the Financial Creditor. The repayment of the same was to be done within 89 days along with interest at bank rate. The Corporate Debtor also issued postdated cheques which, however got dishonoured. 3. The Ld. Counsel appearing on behalf of the Financial Creditor stated these basic facts and drew out attention to Clause 1 of the Memorandum of Understanding (MOU) to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion had been filed was not terminated and, therefore, such MOU could not be enforced. He then drew our attention to the facts that the impugned sum of ₹ 2.5 Crores was received from three different corporate entities and Petitioner was only one of them who has given only ₹ 1 Crore whereas other two entities given 75 Lakhs each. He further contended that both entities were legally independent entities and without any assignment of debt being made by them in favour of the applicant, such application was not maintainable. It was also pleaded that arbitration proceedings were also filed by the Financial Creditor and which were running parallelly, hence, for this reason also this Petition was not maintainable. 5. In the rejoinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the terms and conditions of MOU whereby both the parties in addition to this financial transaction have entered for creation of a SPV which hasnot materialized. It is to be noted that the Corporate Debtor was already having tender in its favour from Kolkata Port Trust which as per its claim only has been illegally terminated by the Kolkata Port Trust and which has resulted into default in the payment of the loan taken by the Corporate Debtor. In our view, MOU consists of two transactions i.e. one is related to granting of loan and other is in regard to formation of SPV. From the perusal of MOU, it is evident that both these transactions are independent of each other. In any case, transaction loan has not been made for equity, hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to show that any disciplinary proceeding is pending against him. This application is defect free. In view of the above facts, we admit this Petition for initiating CIRP of the Corporate Debtor and order as under. ORDER i) The application filed by the Financial Creditor under section 7 of the Insolvency Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s E.C. Bose and Company Private Limited is hereby admitted. ii) We declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. iii) Moratorium is declared for the purposes referred to in Section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. ix) Necessary public announcement as per Section 15 of the IBC, 2016 may be made. x) Mr. Swarnamani Ramasamy of D6, Dev Apartments 32 Kalakshetra Road, Lakshmipuram, Thiruvanmiyur, Chennai-600041 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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