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TMI Blog2022 (5) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly stand dismissed. The financial debt is proved by the Financial Creditor and the default is being committed on the part of the Corporate Debtor, this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. The Application stands admitted in terms of Section 7(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 OLCC 116120000132179 Rs. 2,10,00,000/- 19.10.2011 31.05.2018 CUB-OSL SPECIAL 501812080024451 Rs.1,35,00,000/- 30.12.2016 26.07.2018 TOTAL Rs.5,20,00,000/- 8. In respect of the aforesaid loan accounts, the Corporate Debtor had executed ON DEMAND Promissory Notes and other loan documents from time to time for the loan availed by them. The learned Counsel for the Financial Creditor submitted that apart from executing the Promissory Notes, the Corporate Debtor had executed a Memorandum of Deposit of Title Deed registered vide Document bearing No. 5105/2010 dated 18.10.2010 in favour of the Financial Creditor. 9. Thereafter, it was submitted that the Corporate Debtor had failed to adhere to the terms and conditions and despite repeated request made by the Financial Creditor to pay the amount together with interest, the Corporate Debtor failed to pay and committed default in repaying the amount due to the Financial Creditor. Thus, the three Loan Accounts of the Corporate Debtor had been classified as Non-Performing Asset on 30.06.2018, 31.05.2018 and 26.07.2018 respectively in accordance with the guidelines relating to asset classifications issued by the Reserve Bank of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 5,20,0000/-(sic) (Principal amount) in para 6 of the-counter. Further, with respect to the Forum shopping aspect raised by the Corporate Debtor, it is trite law that section 238 of the IBC, 2016 envisaged that the provisions of the Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law and the same has been observed by the Hon'ble NCLAT in the matter of Punjab National Bank vs. N/s. Vindhya Cereals Pvt. Ltd. in C.A. No. 854 of 2019. 15. The learned Counsel for the Financial Creditor further submitted that the Hon'ble NCLAT in the matter of Unlgreen Global Private Limited vs. Punjab National Bank & Anr. in C.A. No. 81 of 2017 has confirmed that a matter pending before DRT cannot be a ground to reject an application under the IBC, 2016. 16. With regard to the limitation aspect is concerned, the Financial Creditor submitted that the Corporate Debtor has made a false statement that the Present application was filed only on 30.06.2021. In response to that the Financial Creditor submitted that the Present application was filed on 18.03.2021 based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before DRT, Madurai would amount to forum shopping. In so far as the said contentions raised by the Corporate Debtor, the date of NPA is 31.05.2018 and if the said date is to be construed as the date of default then the present Application was filed before this Tribunal as early as on 18.03.2021 and as such the present Application is not barred by limitation. Further, we are of the considered view that there is no dispute regarding the Corporate Debtor owes money to the Financial Creditor and therefore the debt and default is clearly established. 24. Apropos, the Hon'ble Supreme Court in the case of Innoventive Industries Limited v. ICICI Bank Limited, where it has discussed extensively the scope of the Adjudicating authority under section 7 of the IBC is limited to assessing the records provided by the financial creditor to satisfy itself that the default has occurred. 28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor - it need not be a debt owed to the applicant financial creditor. Under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. 25. In view of the facts as stated supra and also in view of the 'financial debt' which is proved by the Financial Creditor and the 'default' being committed on the part of the Corporate Debtor, this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. 26. As a consequence of the Application being admitted in terms of Section 7 of the Code, moratorium as envisaged under provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor; a. The institution of suits or continuation of pending suits or proceedings against the respondent including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the respondent any of its assets or any legal right or ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process: 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. 29. The Financial Creditor has proposed the name of Mr. Gopalsamy Ganesh Babu ([email protected]), Reg. No. IBBI/IPA-002/IP-N00246/2017-18/10731 as the Interim Resolution Professional (IRP) who has also filed his consent in Form - 2 and also upon verification from the IBBI website, it is seen that the said person hold valid Authorization for Assignment till 05.01.2023. 30. The IRP is directed to take charge of the Corporate Debtor's management immediately. The IRP is also directed to cause public announcement as prescribed under Section 15 of the IBC, 2016 within three days from the date the copy of this Order is received, and call for submissions of claim by the creditors in the manner as prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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