TaxTMI 
TaxTMI 
2019 (9) TMI 931
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.... of the Companies Act, having its Registered Office at B/504, Rajshree Avenue, Near Dinesh Hall, Ashram Road, Ahmedabad-380 009, Gujarat. 3. The Authorized Share Capital is Rs. 1,00,00,000/- (Rupees One Crore only) and the Paid-up Share Capital of the Respondent Company is Rs. 1,00,00,000/- (Rupees One Crore only). 4. As per the petitioner-financial creditor, he has advanced a sum of Rs. 3,50,000/- as fund to the corporate debtor, for the purpose of repayment of company's own outstanding dues on 24.02.2018. The above said sum of advance was payable after two years which is not paid. Hence, the corporate debtor has committed default. 5. The Financial Creditor has described all the requisite details of loan disbursed to the Corporate Debtor company as per the provisions of I & B Code. In Part-IV of the application in prescribed Proforma under Rule 4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 of the Code, which are described as under; Particulars of Financial Debt 1 Total amount of debt granted date(s) of disbursement Rs. 3,50,000 (Rupees Three Lakh Fifty Thousand only). Paid/RTGS through Account payee cheque No. 130....
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....l have no objection if the present application is admitted." 7. In addition to the above, the petitioner has further annexed a copy of letter dated 22.02.2016 issued by the company by admitting its loan liability and by agreeing with the terms and conditions for repayment of such fund advanced in two years, which is annexed as Annexure-G of the present petition, as such amount has not been paid after due date of payment in February 2018. The default of debts is duly established. Further examined the relevant provisions of Section 7 of the I & B Code and Rules Applicable. Section 7 of the Code reads as under: 7. Initiation of Corporate insolvency Resolution Process by Financial Creditor. (1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial c....
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....e Code speaks as under; "3(11) "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; 3(12) "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be." 9. Further the petitioner has proposed the name of Shri Prawin Charan Dwary, 407, Akchhat Tower, Pakwan Cross Road, S.G. Highway, Bodakdev, Ahmedabad-380 054, Gujarat, Registration No. IBBI/IPA-002/IP-N00331/2017-18/10937, in the present Insolvency Application. He also annexed a Written Communication received from the proposed Interim Resolution Professional for giving consent in prescribed Form 2, wherein he has mentioned his Registration No. IBBI/IPA-002/IP-N00331/2017-18/10937 and there is no disciplinary proceeding pending against the proposed IRP. Thus, it satisfies the requirement of Section 7(3)(b) of the I & B Code. 10. It is established that there is default of debts which comes to Rs. 5,66,946/- including Rs. 3,50,000/- Principal amount and Rs. 2,16,946/- interest amount and which is in excess ....
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....ires particulars of the applicant 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 point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitt....