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TMI Blog2022 (6) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 by M/s Area Importers And Exporters Private Limited (hereinafter referred to as 'Petitioner/Financial Creditor') to initiate the Corporate Insolvency Resolution Process ('CIRP') against A M/s Gupta Builders and Promoters Private Limited (hereinafter referred to as 'Respondent/Corporate Debtor'). The petition is signed by Mr. Ashish Pahwa, Authorized Representative of of the Financial Creditor and the affidavit verifying the contents of the application is on page 18-20 of the petition. The Authorisation by the Board in favour of applicant is att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 7 of the Code against the corporate debtor. 3.7 In the present case, an amount of Rs. 3,25,00,000/- was disbursed to the corporate debtor. Disbursed amount was against the consideration for the time value of money as the corporate debtor had agreed to pay an interest of 2% per month on the principal amount. 4. In Part-III of Form No.1, Mr. Mukesh Gupta, Registration No.IBBI/IPA-001/IP-Po1494/2018-2019/12254 has been proposed as Interim Resolution Professional (IRP). Form No.2 dated 16.09.2021 along with the Certificate of Registration issued by the Indian Institute of Insolvency Professional of ICAI and the certificate of IBBI issued in favour of proposed Interim Resolution Professional i.e. Mr. Mukesh Gupta are attached at Annexure-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry proceedings pending against the proposed resolution professional, it may, by order, admit such application." 10. The issue for consideration is whether the present application is filed within limitation. It can be seen from the records that the date of default is 20.08.2021 and the present petition is filed vide Diary No. 01139 dated 22.10.2021. Therefore, the present petition is filed within limitation. 11. Another issue for consideration is whether there is default in payment or not. As per Section 7 of IBC which is reproduced below :- "Section 7 Initiation of corporate insolvency resolution process by financial creditor. (1) A financial creditor either by itself or jointly with 1[other financial creditors, or any other person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission.] Explanation.--For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. " 12. It is observed from the record that in the present case, the occurrence of default is evidenced by the copy of the acknowledgement by the corporate debtor and the account statement of the Petitioner/Applicant and the same are attached as Annexure-6 and Annexure-A-5 & A-10 respectively of the petition. The respondent-corporate debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequence of the moratorium in terms of Section 14, the following prohibitions are imposed, which must be followed by all and sundry: "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor 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 corporate debtor any of its assets or any legal right or beneficial interest therein; (c) Any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further directed to send regular progress reports to this Tribunal every fortnight. 16. We direct the Financial Creditor to deposit a sum of Rs.2,00,000/- (Rupees Two Lakh Only) with the Interim Resolution Professional, to meet out the expense to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The amount, however, is subject to adjustment by the Committee of Creditors as accounted for by the Interim Resolution Professional on the conclusion of CIRP. 17. A copy of the order shall be communicated to both the parties. The learned counsel for the petitioner shall deliver a copy of this order to the Interim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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