2017 (8) TMI 1257

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....ing reliefs under Section 9 of the Code. 2. It is the case of the Applicant that it had supplied various materials from time to time to Ardor International Limited and the outstanding amount from Ardor International Limited is Rs. 15,35,40,909.49 ps. It is also the case of the Applicant that Applicant agreed to supply goods to Ardor International Limited on a condition that the payment of all and any sums of monies due and payable by Ardor International Limited shall at all times be guaranteed by Ardor Global Private Limited, its Associate Entity. It is also stated that pursuant to the said understanding a Deed of Guarantee dated 1st September, 2014 between Applicant Company and Respondent Company was entered into whereby Respondent compan....

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....al Private Limited are situated in one premises and in the process of inventory, Official Liquidator had taken possession of all the books and account and registers of the Respondent Company also. Further it is stated that Respondent wrote a letter dated 2.2.2017 to the Official Liquidator to give access of the records and registers of the Respondent company. 4.2 The second objection is, that the dollar conversion rate in calculating the due amount shall be taken into account on the due date but not on the date of demand notice. If the dollar rate is taken on the date of demand notice or one day prior to the date of demand notice it will go to the advantage of the Applicant. It is also contended by the learned Counsel for the Respondent th....

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....issue of exchange rate of dollars into rupees, the objection of the Respondent appears to be not a valid objection. If any amount is due in dollars when it is to be repaid in rupees, the exchange rate on the date of repayment has to be taken into consideration irrespective of the fact whether it is advantageous or disadvantageous to the debtor or creditor. To say that the exchange rate as on the due date shall be taken into consideration appears to be not a valid ground for not initiating resolution process under the Code. In view of the above discussion, there are no tenable objections in the Reply of the Respondent. 8. Applicant served copy of the Petition; applicant served the demand notice; applicant named the Insolvency Resolution Pro....

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.... a finding that it was necessary to reopen C.P. (IB) No. 33 of 2017 to hear on the aspects whether the Operational Creditor can initiate Insolvency Resolution Process against the guarantor of the Corporate Debtor and on the aspect of right of audience to Central Bank of India. 11. First of all, coming to the right of audience to the Central Bank of India, which is said to be a 'Financial Creditor' of the Corporate Debtor, there is no provision in the Code or in the Adjudication Rules that on an application filed by the Operational Creditor under Section 9 of the Code there is a need to give notice to the Financial Creditor. However, in view of the Caveat filed by the Financial Creditor, notice has been ordered. The argument put for....

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....ows that Ardor Global Private Ltd., undertook to pay the claim of the Applicant for supply of goods to Ardor International Limited. 13. Therefore, when the definition of the word 'claim' in Section 3 of the Code is inserted into the definition of 'operational debt' in sub-section (21) of Section 5, it includes the amount payable under the Guarantee Agreement also. No doubt, in case of 'financial debt', Section 8 Clause (i) specifically says about the liability in respect of any of the guarantee for any of the items referred to in sub-clauses (a) to (h). There is no such specific clause in case of 'operational debt'. But, reading the definition of 'claim' into the definition of 'operational debt&#....

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....on of this Petition and appointment of the Interim Insolvency Resolution Professional, this Adjudicating Authority hereby passed the order declaring moratorium under Section 13(1)(a) prohibiting the following as laid down in Section 14 of the Code; (i) 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; (ii) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (iii) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect ....