TaxTMI 
TaxTMI 
2018 (1) TMI 1356
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.... the Respondent/Corporate Debtor approached the Petitioners for a loan of Rs. 1.00 Cr. for its business purpose. The Applicants/Petitioners agreed to give advance loan of Rs. 1.00 Cr. to the Corporate Debtor and a loan agreement was executed on 17.07.2014 in favour of Petitioner by the Corporate Debtor. The repayment schedule was also arrived at and Corporate Debtor had undertaken to strictly adhere to the repayment schedule. The Petitioners issued cheque bearing No.67 dated 17.07.2014 drawn on Kotak Mahindra Bank, NS Patkar Marg, Mumbai and another cheque bearing No.167 dated 17.07.2014 drawn on the same bank. The two cheques totalling to Rs. 1.00 Cr. were delivered to Corporate Debtor who encashed the same. Further, Corporate Debtor also mortgaged the property as security for the said loan. The Directors of Corporate Debtor also executed personal guarantee in favour of the Applicants/Petitioners. Further, they also executed hundis. It is also the case of Petitioners that Corporate Debtor was paying instalments as per repayment schedule. However, from February 2015, Corporate Debtor started committing default in repayment of loan as per schedule. Corporate Debtor had accepted ....
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....tioners have not released the mortgage and therefore it had filed complaints against them and they were referred to Vidyaranyapura Police Station for investigation. 7. The case of Corporate Debtor that it had repaid the loan amount by way of open cheques and that it made allegation that the Petitioners have collected exorbitant rate of interest. The Corporate Debtor further relied on the copies of letters issued to Bank Manager along with copies of self-cheques shown as Annexure-IV. 8. Further Corporate Debtor alleged the Petitioners have returned 79 cheques which were said to have been collected by the Petitioners at the time of sanctioning of loan. The allegation of Corporate Debtor that those cheques were returned consequent upon repayment of loan by way of open cheques, cash and by clearing other cheques. 9. Corporate Debtor further alleged that the Petitioners misused some blank cheques and filed criminal complaints under Section 138 of NI Act. 10. Corporate Debtor further alleged it had paid more than Rs. 5.00 Cr. and that list of payments made to the Petitioner by way of cheques are shown in Annexure-VI. 11. Corporate Debtor further alleged the letters relied by the P....
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.....2014. The Corporate Debtor admitted executing simple mortgage as a security for the loan. The Corporate Debtor further admits that two Directors executed personal guarantees and hundis. Personal guarantee of the Directors are shown as Annexure I-E and Annexure-I-F. The copies of On demand promissory notes are marked as Annexure-I-G and Annexure-I-H. The Petitioners/Financial Creditors also filed the bank statement for the years 2014-17 shown as Annexure-I-D. The repayment schedule as on the date of default is shown as Annexure-I-A. As I already said, Corporate Debtor had admitted availing loan from the Financial Creditors/Petitioners. It is a case of Financial Creditors/Petitioners that Corporate Debtor had failed to adhere to the repayment schedule from February 2015. In other words, Petitioners admitted Corporate Debtor had paid loan amount as per repayment schedule till January 2015. So, it is the specific case of the Petitioners that Corporate Debtor committed default from February 2015. Whereas, the case of Corporate Debtor that it had never committed default and that no amount was due to the Petitioners towards loan and that entire loan amount including interest, etc., wa....
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....e given personal guarantee and Corporate Debtor also executed hundis. Then, a question arises what was the need to give cheques. It is necessary to consider the cheques relied by the Corporate Debtor. The Corporate Debtor has produced Annexure-A-III and Annexure-A-VI. Annexure-A-III consists of a payment sheet. This starts from 2013 whereas the loan in question was availed on 17.07.2014. Therefore, Annexure-A-III cannot be connected to this loan transaction. The Learned Counsel for the Petitioners would contend the cheques shown as Annexure-A-V and Annexure-A-VII are no way connected to the loan transaction as some of the cheques were issued to certain people and Learned Counsel further contended that the Corporate Debtor had failed to show how they are connected to the loan transaction. I have seen the cheques. Some of the cheques are standing in the name of some other persons. They are all cancelled cheques. It is not the case of Corporate Debtor that any amount was paid to the Applicants under these cheques. On the other hand, all these cheques are cancelled cheques. May be some of the cheques are drawn in the name of the Petitioners but the fact remains that all the cheques ....
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....ebtor. Here Corporate Debtor categorically admitted that it cannot honour cheques and requested the Petitioners not to deposit the cheques issued earlier. And again the Corporate Debtor issued fresh cheques in exchange of the old cheques. Thus the Petitioners are able to establish the Corporate Debtor has committed default and it had clearly admitted the default and further failed to honour the cheques issued towards repayment of loan. As a consequence of dishonour of cheque, the Petitioners filed complaint under Section 138 of NI Act against the Corporate Debtor. The Corporate Debtor has utterly failed to show any dispute and further failed to show that amount as claimed was not due. This is a petition filed by the Financial Creditor under Section 7 of I&B Code. Section 7 deals with initiation of Corporate Insolvency Resolution Process by Financial Creditor. The Financial Creditor has complied the provisions of Section 7 of I&B Code. Financial Creditors/Petitioners has produced evidence of default and also furnished the name of Resolution Professional. Therefore, there are grounds to admit the Petition. The contention of the Counsel for Corporate Debtor that the Petitioners have....
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....g Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required herein. Form 1 is a detailed form in 5 parts, which requires particulars of the applican.t 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 to appoint out that a default has not occurred in the sense that the "debt", which may also include....
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....ail ID: [email protected]. He has also given written consent. The IRP also stated that there are no disciplinary proceedings pending against him and that he is eligible to be appointed as RP. Therefore, there are grounds to admit the Petition. This Bench admits the petition under Section 7 of Insolvency and Bankruptcy Code, 2016 declaring moratorium for the purposes referred to in Section 14 of the Code with the following directions: i. That this Bench hereby prohibits 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; transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the ....