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TMI Blog2022 (4) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... cant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt which is acknowledged and admitted in writing by the corporate debtor. In light of the above facts and records the present application is admitted and CIRP is ordered to be initiated against corporate debtor. Petition admitted - moratorium declared. - Company Application No. CP (IB) 296/NCLT/AHM/2020 - - - Dated:- 30-3-2022 - Dr. Deepti Mukesh, Member (J) And Kaushalendra Kumar Singh, Member (T) For the Appellant : Chirag Bhavsar and Kari Shroff, Advocates For the Respondents : Arpit R. Singhvi, Advocate ORDER Dr. Deepti Mukesh, Member (J) 1. The Present Application is filed under section 7 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by Mrs. Sunandaben R. Patel (for brevity 'Applicant'), with a prayer to initiate the Corporate Insolvency process against Raymon Patel Gelatine Private Limited (for brevity 'Corporate Debtor'). 2. The Applicant financial creditor is wido ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting the assured interest in the applicant's account as reflected in the summary of accounts of the applicant which is annexed to the application. Being aggrieved by such conduct of the corporate debtor, the applicant and her husband Mr. Ramanbhai Patel (since deceased) made various written and verbal requests to the corporate debtor to return the loan amount along with assured interest, but, the corporate debtor ignored all the requests and did not make any payment of the outstanding loan and interest. Thereafter, on 27th February, 2018, husband of the applicant Mr. Ramanbhai Patel (since deceased) addressed a letter to the corporate debtor requesting to repay the loan with interest. 7. It is submitted that on 6th February, 2019, Mr. Ramanbhai Patel passed away. Chartered Accountant of the applicant addressed letter dated 16.08.2019 to the corporate debtor regarding various matters requiring resolution and compliance followed by reminders dated 31.08.2019 16.09.2019. He also sent third reminder dated 03.10.2019 addressed to Smt. Prabhaben Patel, Director of the Corporate Debtor regarding non-receipt of consideration against sale of shares of company followed by reminder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own, has accepted in its books of account a sum of ₹ 2,35,78,561.33 against the applicant; Initial report from the Information Utility NeSL reflects amount overdue as ₹ 8,54,60,263/- The defence of limitation does not survive as the amounts sought to be recovered are in the nature of deposits for which limitation begins only when there is a demand and not prior thereto; 10. The applicant filed written submissions reiterating the pleadings made in the application and enclosing the following documents along with Judgments of Hon'ble Supreme Court and Hon'ble High Courts relied upon by the applicant: Documents: Copy of letter dated 31.01.2017 along with its enclosures; Copy of email dated 18th March, 2019; Copy of letter dated 07.03.2019 addressed by the applicant to the corporate debtor authorising Mr. Atul Shade, Chartered Accountants Copy of letter dated 07.03.2019 written by the applicant to the corporate debtor; Final report of Information Utility (NeSL) dated 08.08.2020; Judgments Mahabir Cold Storage vs. C.I.T. Patna (1991 Supp (1) Supreme Court Cases 402); The entries in the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acity does not invalidate acknowledgement The Commissioner of Income Tax - III vs. Shri Vardhman Overseas Ltd. ( (2012) 343 ITR 408) Not much relevant to this case Abdul Hamid Sahib Ors. vs. Rahmat Br. ( AIR 1965 Mad 427) The terms loans and deposits are not mutually exclusive terms. But, when the repayment is to be, it furnishes the real point of distinction between the two concepts, a loan is repayable the minute it is incurred. Shri Basant Lal Agarwal vs. Lloyds Finance Ltd. The terms loans and deposits are not mutually exclusive terms. But, when the repayment is to be, it furnishes the real point of distinction between the two concepts, a loan is repayable the minute it is incurred. 11. The corporate debtor filed written submissions inter alia stating: In absence of any written loan agreement with terms and conditions such as the amount of loan, tenure of loan, interest payable, repayment terms etc. an application cannot be filed under Section 7 of the IB Code; Mere fact that a company paid interest at the rate of 12% per annum during certain period cannot be the ground to hold that the debt comes within the mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The present application is complete in terms of Section 7(5) of the Code. The applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt which is acknowledged and admitted in writing by the corporate debtor. In light of the above facts and records the present application is admitted and CIRP is ordered to be initiated against corporate debtor. 17. The applicant has proposed the name of Mr. Bhaskar Gopal Shetty as Insolvency Resolution Professional, who is be and hereby appointed as IRP of corporate debtor having registration number IBBI/IPA-001/IP-P-01285/2018-19/12003 having office at C-77, Shanti Shopping Centre, Mira Road East, Maharashtra 401 107 having e-mail ID [email protected] and contact No. 9930897310, subject to the condition that no disciplinary proceedings are pending against him. Specific consent of the IRP is filed in Form 2 along with disclosures as required under IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 is filed which is on record. 18. We direct the Financial Creditor to deposit a sum of ₹ 2.00 lacs (Rupees two lacs only) with the Interim Resolution Professiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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