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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 ..... pplication, it is seen that the Financial Creditor is a Bank. The registered office address of the Financial Creditor as per the Application is stated to be situated at No. 49, TSR Big Street, Kumbakonam - 612001, Thanjavur District. Further, Part-I lays down the Authorized Representative of the Financial Creditor to be one Mr. R.M. Renganath, Manager, Legal of the Financial Creditor duly authorized by Power of Attorney dated 16.10.2020 placed at Annexure No. III in the Application typeset. 3. Part II of the Application lays down the details of the Corporate Debtor. It can be seen that the Corporate Debtor is a Private limited company incorporated under the Companies Act, 1956 on 20.12.2005 with CIN: U51311TN2005PTC058472. The registered office of the Corporate Debtor as per the application is situated at No. 12-13-14, Amman Sannathi, Madurai - 625 001, Tamil Nadu. 4. From Part-III of the Application, it is seen that the Financial Creditor has proposed the name of the Interim Resolution Professional (IRP) viz., Mr. Gopalsamy Ganesh Babu, Reg. No. IBBI/IPA-002/IP-N00246/2017-18/10731. 5. From Part-IV of the Application, it is seen that the Financial Creditor has claimed a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability. Therefore to recover the outstanding debt, the Applicant is left with no other option rather to approach this Tribunal for initiation Corporate Insolvency Resolution Process against the Corporate Debtor. 10. The Learned Counsel for the Corporate Debtor had filed a counter wherein the Corporate Debtor had admitted the outstanding liability of Rs. 5,20,00,000/- (Principal Amount) in para 6 of the Counter Affidavit. Further, in para 8 of the Counter it was submitted by the Corporate Debtor that the Financial Creditor issued notice under section 13(2) of SARFAESI Act, 2002 on 30.08.2018 for a default of 14,14,61,066/- for almost 12 accounts. 11. The Learned Counsel for the Corporate Debtor in para 12 of the Counter submitted that the Applicant Bank had declared the Corporate Debtor Company's loan account as Non - Performing Asset (NPA) ON 31.05.2018, whereas the present application is filed before this Tribunal only on 30.06.2021 with a delay which is barred by limitation and therefore not maintainable. 12. The Learned Counsel for the Corporate Debtor in para 14 of the counter wherein it was stated that the present application is filed against three loan facility in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent application is filed well within the period of limitation. 17. The Learned Counsel for the Corporate Debtor has filed an additional counter which is taken on record. Interlocutory Applications (IA) Filed By The Respondents: 18. Respondents have filed the following IA's before this Tribunal under Rule 11 read with Rule 32 of NCLT Rules, 2016: i. IA/839/2021 ii. IA/844/2021 19. In so far as IA/839/2021 is concerned, the same was filed to implead the Deputy Commissioner of Income Tax (Benami Prohibition) as a proposed respondent, as the said proposed Respondent had initiated proceedings before the Adjudicating Authority, Prohibition of Benami Property Transaction Act, 1988. 20. The IA/844/2021 was filed to keep present Application bearing CP/IB/75/2021 before this Tribunal in abeyance till the matter in Reference No. R-1929/2020 on the file of the Adjudicating Authority, Prohibition of Benami Property Transaction Act, 1988. 21. It is no longer res Integra that proceedings under Section 7 of IBC, 2016 is filed for Insolvency Resolution of the Corporate Debtor and not for recovery of money from the Corporate Debtor. In so far as Application under Section 7 of IBC, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. Explanation.-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license or a similar grant or right during moratorium period; 27. However during the pendency of moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder; (2) The supply of essential goods or services to the Corporate Debtor as may be specified shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2016. 31. The IRP appointed shall take in this regard such other and further steps as are required under the Statute, more specifically in terms of Section 15, 17, 18 of the IBC, 2016. The powers of the Board of Directors of the Corporate Debtor shall stand superseded as a consequence of the initiation of the CIRP in relation to the Corporate Debtor in terms of the provisions of IBC, 2016. 32. The IRP shall comply with the provisions of Sections 13(2), 15, 17 & 18 of the Code. The Directors of the Corporate Debtor, its Promoters or any person associated with the management of the Corporate Debtor are directed to extend all assistance and cooperation to the IRP as stipulated under Section 19 of IBC, 2016 for the purpose of discharging his functions under Section 20 of IBC, 2016. 33. Based on the above terms, 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. A copy of the Order shall be communicated to the Financial Creditor as well as to the Corporate Debtor above named by the Registry. In addition, a copy of the Order shall also be forwarded to IBBI for its records. Further, the Interim Resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X
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