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TMI Blog2022 (10) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor having admitted their liability in the earlier Company Petition 45 of 2020 through Consent Terms is estopped from disputing of the existence of debt and default since this Company Petition is nothing but second round of litigation in respect of same debt and default. It is found that the Petitioner has not received the outstanding debt from the Corporate Debtor and that the formalities as prescribed under the code have been completed by the Petitioner, and thus this Petition deserves Admission - petition admitted - moratorium declared. - C. P ( IB ) NO. 1029 OF 2021 - - - Dated:- 10-10-2022 - Hon ble Shri H.V. Subba Rao, Member (Judicial) And Hon ble Smt. Anuradha Sanjay Bhatia, Member (Technical) For the Petitioner: Adv. Rohit Gupta a/w Adv. Krushi N Barfiwala Adv. Rima Desai i/b Parinam Law Associates For the Corporate Debtor/ Respondent: Adv. Nausher Kohli a/w Adv. Aneesa ORDER Per : Anuradha Sanjay Bhatia, Member (Technical) 1. The above Company Petition is filed by IREP Credit Capital Private Limited, hereinafter called as Petitioner seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Rajesh Land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner submits that for the quarter ending 30.09.2019 the Respondent defaulted in the payment of interest and all subsequent payments thereafter. Due to the Respondent s failure to comply with the terms of the DTD and Supplemental DTD the Petitioner issued a letter dated 28.11.2019, calling upon the Respondent Company to repay the sums due and payable under the DTD and other transaction documents and thereby, called upon the Corporate Debtor to pay Rs. 19,84,93,345/- within five business days. However, the Corporate Debtor failed to pay pursuant to this, Vistra ITCL (India) Limited, issued a letter dated 24.01.2020 confirming the occurrence of Default under the DTD and declared that series 1 Debentures were due along with redemption premium, interest and penal interest. 6. The Petitioner filed CP (IB) 45 of 2020 before this Tribunal under Section 7, of the Code against the Corporate Debtor with a view to settle the disputes amicably and at the behest of the Petitioner. The parties agreed to file the said Consent Terms dated 14.10.2020 ( Consent terms ). The said Consent Terms were taken on record vide order dated 07.01.2021 by this Tribunal. Under Clause 8(B)(a)(i) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the DTD Stipulates as follows: 9.2 Consequence of Default On and at any time after the occurrence of a Default, in addition to the levy of Default Interest in accordance with the clause 9.6 (Default interest), the Debenture Trustee may, upon the delivery of 1 (one) Business days notice, which notice the Issuer acknowledges herein as being reasonable, take any or all of the following action: 13. The Respondent in its reply submitted that, the Petitioner has failed to place on record any Default Notice issued by the Debenture Trustee in accordance with the DTD. Further, the Petitioner has even failed to place on record any decision by the majority of the Debenture Holders declaring or calling upon the Debenture Trustee to issue a Default Notice. 14. The Respondent in its reply submitted that execution of the Consent Terms, also does not do away with the requirement of issuance of a Default Notice as contemplated in Clause 9.2. of the DTD. This is because the Consent Terms clearly contemplates that in case of breach of Consent Terms, the recourse continues to be under the DTD itself. This is specifically recorded under Clause 9 of the DTD. In any event, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Trustee about continuous breach of Consent Terms by the Respondent. The Petitioner also submits that vide Email dated 22.10.2021, the Debenture Trustee stated, that it has received Approved Instructions with regard to Petitioner s claim. 19. The Petitioner in its Affidavit submits that vide Enforcement Notice dated 25.02.2022, The Trustee of Majority Debenture holder also made its intention clear to take action against the Respondent company under the DTD and against the Respondent s group companies either through Debenture Trustee or by itself. 20. The Petitioner further submits that after perusal of the Consent Terms, the Petitioner is entitled to claim the entire amount, the same has been accepted by the Respondent. FINDINGS: 21. Upon perusal of the petition, after hearing both the parties, it is established that the Corporate Debtor is liable to pay the Petitioner and it has defaulted in making the payment to the Petitioner. Considering the above facts, we come to conclusion that the nature of Debt is a Financial Debt as defined under Section 5 (8) of the Code. It has also been established that there is a Default as defined under Section 3 (12) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar, Mumbai City, Maharashtra, 400028, Email ID- [email protected] and having registration No. IBBI/IPA-002/IP-N00353/2017- 2018/11003, is hereby appointed as Interim Resolution Professional to conduct the Insolvency Resolution Process. 28. Accordingly, the above Petition is Admitted by passing the following: ORDER The above Company Petition No. 1029/IBC/MB/2021 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against Rajesh Landmark Projects Private Limited. a. This Bench hereby appoints Mr. Bhrugesh Amin, Insolvency Professional, Registration No: IBBI/IPA-002/IPN00353/ 2017-2018/11003 having Registered at BDO India LLP, The Ruby - Level 9, NW Wing Senapati Bapat Marg Dadar, Mumbai City, Maharashtra, 400028, having Email ID- [email protected] as the interim resolution professional to carry out the functions as mentioned under the Insolvency Bankruptcy Code, 2016. b. The Petitioner shall deposit an amount of Rs.5 Lakhs towards the initial CIRP costs by way of a Demand Draft drawn in favour of the Interim Resolution Professional appointed herein, immediately upon communication of this Order. The IRP shall spen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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