9911796707
TMI Blog2022 (6) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 7 of the Insolvency & Bankruptcy Code, 2016 (I&B Code) against NIRMAL LIFESTYLE (KALYAN) PRIVATE LIMITED, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). 2. The Date of Default is 05.02.2020. The Financial Creditor is claiming an amount of Rs. 7,87,50,000 (Rupees seven crore eighty-seven lakh fifty thousand only) as on 07.09.2020 as mentioned in Part -IV of the petition. The petition has been filed on 30.11.2020. 3. The case of the Financial Creditor is as under: a. The Corporate Debtor through Loan Agreement dated 05/08/2019 has availed Financial Assistance from the Financial Creditor for an amount of Rs. 84,23,75,000/- (Rupees eightyfour crore twenty-three lakh seventy-five thousand Only). The af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor requested further moratorium, which was rejected by the Financial Creditor through email dated 9/4/2020. g. The Financial Creditor has also placed on record CIBIL report evidencing default on part of Corporate Debtor as Exhibit 'I' at Page No. 285-492 of the Petition. h. Despite the various approaches made as stated by the Financial Creditor, the Corporate Debtor has categorically failed to remedy its default and repay its debts and therefore, the Financial Creditor has filed a Company Petition under Section 7 of the I&B Code seeking admission for initiation of the Corporate Insolvency Resolution Process of the Corporate Debtor. 4. The case of the Corporate Debtor is as under: a. The Corporate Debtor submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the Corporate Debtor has relied upon the Judgment of Hon'ble Supreme Court of India in the matter of Ramesh Kymal v. Siemens Gamesa Renewable Power Private Limited, Civil Appeal No.4050 of 2020, passed its judgement dated 09.02.2021 wherein it held at the paragraph No.23 as follows: "Adopting the construction which has been suggested by the appellant would defeat the object and intent underlying the insertion of Section 10A. The onset of the Covid-19 pandemic is a cataclysmic event which has serious repercussions on the financial health of corporate enterprises. The Ordinance and the Amending Act enacted by Parliament, adopt 25 March 2020 as the cut-off date. The proviso to Section 10A stipulates that "no application shall ever be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as because the Hon'ble Finance Minister announced that the Union Cabinet had cleared a proposal to setup a "special window" in the form of an Alternate Investment Fund (AIF) to provide debt financing for completion of stalled housing projects. The details of the same are placed at page 3 of the Written Submissions of the Corporate Debtor. g. The Corporate Debtor further submits that the documents were insufficiently stamped and the Financial Creditor has failed to pay the adequate stamp duty on the said Loan Agreement. h. The Corporate Debtor submits that the Financial Creditor has charged exorbitant and unreasonably high rate of interest and the same has been tabulated in Exhibit -"J" of the petition. i. The Corporate Debtor furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 2 179643 1,00,00,000 05.03.2020 186 3 179643 1,12,50,000 05.04.2020 155 4 179643 1,12,50,000 05.05.2020 125 5 179643 1,12,50,000 05.06.2020 94 6 179643 1,12,50,000 05.07.2020 64 7 179643 1,12,50,000 05.08.2020 33 8 179643 1,12,50,000 05.09.2020 02 Total (Rs) 7,87,50,000 Although from the petition, pleadings made and arguments extended by the Counsel of both the sides, it is observed that the defaults in Loan account under Contract No.179643 at Serial No 1 and 2 are dated 05.02.2020 and 05.03.2020 and the remaining defaults were on or after 05.04.2020 which comes under section 10A of the IBC 2016 which cannot be considered as default. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment, 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 of Security Interest Act, 2002; d) the recovery of any property by an owner or lessor where such property is occupied by or in possession of the corporate debtor. II. That the supply of essential goods or services to the corporate debtor, if continuing, shall not be term ..... X X X X Extracts X X X X X X X X Extracts X X X X
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