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2017 (11) TMI 1686
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....cy (Application to Adjudicating Authority) Rule, 2016 for corporate insolvency resolution process against the respondent M/s. ABNM Restaurant Private Ltd. (Corporate Debtor). Brief facts as construed from the perusal of the following records are the following:- The corporate debtor has availed various credit facilities by way of financial assistance from the (Financial Creditor) Mr. Ketan Mehta. Mr. Ketan Mehta had granted credit facilities of an overall limit of Rs. 1,09,22,999.00 (Rupees One Crore Nine Lakh Twenty-Two Thousand Nine Hundred Ninety-Nine only) an agreed amount of debt granted to the corporate debtor as per an executed Agreement between the Corporate Debtor and Financial Creditor dated 25.07.2016 marked and annexed as (Ann....
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....duced in the petition. The written communication of the same under Form-2 has been duly marked and annexed as ("Annexure-II", P.51). Also, by power of attorney the petitioner has appointed the said Company secretary, Mr. Kiran Sharma to appear on the behalf of the Financial Creditor, copy of the said Memorandum of appearance under Form NCLT- 12 marked and annexed in P. 54, 55. That, the petitioner prays for initiating corporate insolvency resolution process against the corporate debtor. In reply to the contentions raised by the petitioner, the respondent - Corporate Debtor mainly raised the following contentions. The petition is not maintainable. The petitioner has no locus standi to file this application as the Financial Creditor fai....
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....Creditor' along with the application required to be furnished information and other facts as prescribed under sub-section (3) of Section 7. Where the Adjudicating Authority is satisfied that a default has occurred and the application under sub-section (2) is complete, and there are no disciplinary proceedings pending against the proposed resolution professional, it can admit such application and in case the application is incomplete, required to provide 7 days' time to complete the record and on failure is to dismiss the application. The Hon'ble NCALT in the above referred case also held that "It is well settled that rules of procedure are to be construed not to frustrate or obstruct the process of adjudication under the subs....
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....under section 5 (4) of I&B, Code this petition is liable to be dismissed. It is significant to note that the statement of account not at all challenged by the learned counsel for the respondent. Learned counsel for the respondent also submits that due to inability to pay the debt the respondent could mot discharge the debt. The fact in the above cited case is entirely different with that of the fact in the case in hand. In this case petitioner showed details of the respondent in the Form-I. On a perusal of the document annexed in Form -1 under the No-II, wherein as against Serial No.2 (Identification Number of the Corporate Debtor is U55101WB1999PTC090068) along with the date of incorporation on 13^th August 1999 with a nominal share cap....
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....ition is otherwise complete we find the petition filed under section 7 of I&B Code is perfectly maintainable. Bear in in mind the principle laid down in the NCALT judgment referred above, we are satisfied that petitioner succeeded in proving the compliance of all requirement on its side and established default in repayment of the debt by the respondent. Thus, the next question is whether the proposed insolvency professional name can be considered for the appointment as per section 7(5)(a) of I&B, Code? Here in this case the petitioner proposed the name of insolvency professional Shri Bhimal Agarwal, Chartered Accountant and produced written communication from the proposed IRP in Form 2 as per sub rule (1) of Rule 9 of the Insolvency a....
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....curitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (ii). That the supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during moratorium period. (iii). That the provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (iv). That the order of moratorium shall have effect from the date of admission of this petition till the completion of the corporate insolvency resolutio....