TaxTMI 
TaxTMI 
2018 (9) TMI 1612
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by Respondent No.2 - 'Amiga Informatics Pvt. Ltd.' (Financial Creditor) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') by virtue whereof Corporate Insolvency Resolution Process was triggered, moratorium slapped, Interim Resolution Professional appointed and the necessary directions were given. 2. The facts leading to filing of petition for initiation of Corporate Insolvency Resolution Process at the hands of 'Financial Creditor' are not in controversy. The 'Financial Creditor' granted financial assistance of Rs. 1.02 Crores in the form of a loan to the 'Corporate Debtor' in the year 2016. The said amount was repayable with interest calculated @1.5% per month w.e.f. December, 2016. Up....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsferring its property to discharge the liability as there were serious disputes inter-se the Directors which are under adjudication before the Tribunal. Wherein, the Tribunal has directed maintenance of status quo as regards by constitution of Board of Directors and the Shareholding pattern. Per contra it is argued on behalf of the Financial Creditor that dispute inter-se the Directors was irrelevant for initiation of Corporate Insolvency Resolution Process as there was a debt and default and the application under Section 7 of I&B Code was complete. 4. Initiation of Corporate Insolvency Resolution Process by Financial Creditor is regulated by the provision engrafted in Section 7 of I&B Code, which reads as under: 7. Initiation ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-section (5), give a notice to the applicant to rectify the defect in his application within seven days of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resoluti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lars 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 point out that a def....
X X X X Extracts X X X X
X X X X Extracts X X X X
....proaches the Adjudicating Authority for initiation of Corporate Insolvency Resolution Process with an application under Section 7 of I&B Code filed in Form 1 accompanied by documents, records and evidence of default, he is required to dispatch a copy of the application to the registered office of Corporate Debtor by registered post or speed post. Within 14 days thereof the Adjudicating Authority is required to ascertain the existence of a default. This is to be done on the basis of record of information utility or evidence produced by the Financial Creditor. The Adjudicating Authority must be satisfied as regards occurrence of default. The Corporate Debtor is entitled to show that the debt is not payable in law or in fact and there is no de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nal dispute of the Directors which were under adjudication before National Company Law Tribunal, New Delhi Bench and an interim direction had been passed therein to maintain status quo. The same ground is urged before us through the medium of instant appeal. It is abundantly clear that the Appellant has filed the instant appeal with the ulterior motive of wriggling out of the liability and evading the obligation arising out of the arbitral award in terms whereof the Corporate Debtor had agreed to transfer an immovable asset in favour of the Financial Creditor. This is a clever ploy to frustrate the arbitral award. Inter-se dispute between the Directors as regards transfer of shareholding and allegations of oppression and mismanagement state....