TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 39
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.... has been prayed for, was incorporated on 01.03.1989 having its registered office situated at 301-302, Anand Chambers 25/34 East Patel Nagar New Delhi - 110008. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that the applicant M/s. Prayag Polytech Private Limited, is a company incorporated on 16.08.1982 having its Registered Office situated at C-587, Industrial Area, Phase-1, Bhiwadi-301019, Rajasthan. 4. Shri Milan Aggarwal, Director of the company authorized through resolution dated 18.12.2018 of the Board of Directors of the company, has preferred the present application on behalf of the applicant for initiation of corporate insolvency resolution process against the respondent corporate debtor in terms of the provisions of the Code. 5. The case of the applicant in brief is that on 01.04.2016 applicant disbursed Rs. 40,00,000/- in favour of resp....
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....e purview of "financial debt" as defined under the Code and therefore the present application is not maintainable. 13. The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and 5 (8) of the Code and precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money. 14. In the present case applicant has placed statements including bank transactions to show that loan was disbursed to the respondent. Respondent in their reply, although disputed the entire claim of the applicant but admitted that the loan was a long-term borrowing. Respondent therefore has accepted that the debt amount received from the applicant was in the nature of a loan. Once it is accepted that the debt was received as a long-term borrowing, it is evident that the said loan amount was clearly disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover, the debt claimed in the present application includes both the component of outstanding principal and interest. 15. In that view of the matter it is seen that not only the present claim comes within the p....
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.... to accept the appointment as the interim resolution professional and has signed a communication dated 15.01.2019 in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. In addition, further necessary disclosures have been made by Mr. Sameer Rastogi as per the requirement of the IBBI Regulations. Accordingly, it is seen that the requirement of Section 7 (3) (b) of the Code has been satisfied. 21. It is thus seen that the requirement of sub-section 5 (a) of Section 7 of the code stands satisfied as default has occurred, the present application filed under Section 7 is complete, and as no disciplinary proceeding against the proposed IRP is pending. 22. One of the main objections of the respondent is that the amount was given under an oral agreement, which was due and payable at the convenience of the respondent within a period of seven years and not on demand by the financial creditor. Accordingly, it is pleaded that default has not yet arisen. 23. In this regard it is see....
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....orate Insolvency Process against the corporate debtor under the provisions of Section 7 of the Code. Simply pendency of proceedings cannot be a ground to deny admission of an application under Section 7 of the Code, once the application is complete and there has been commission of default. 28. Insolvency and Bankruptcy Code, 2016 being a complete Code and Union Law, will prevail over other earlier laws like the Companies Act, 2013. As per Section 238 of the Code, the provisions of the Code are to be given effect to notwithstanding anything contrary contained in any other earlier laws. 29. Hon'ble NCLAT in the matter of Ksheeraabad Constructions (P.) Ltd. v. Vijay Nirman Co. (P.) Ltd. (NCL - AT) has observed that: 'The "I & B Code" being a complete code will prevail over other Acts. No person can take advantage of pendency of a case to stall "Corporate Insolvency Resolution Process" under the I & B Code'. 30. Similarly in the case of Innoventive Industries Ltd. v. ICICI Bank 143 SCL 625 (SC) Hon'ble Supreme Court has also held at para 56 that: "The non-obstante clause, in the widest terms possible, is contained in Section 238 of the Code, so that any right of ....
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....s in relation to the disbursement of the loan to the respondent company and in support of the default in repayment. In support of the pleading the Applicant has filed its relevant statement of bank accounts along with auditors report as on 31st March, 2017. The applicant has also filed the calculation sheet providing the calculation of the financial debt along with the ledger account of the corporate debtor maintained by the financial creditor till 25.12.2018. In addition, copies of Balance Sheets for the years 2015-16 and 2016-17 of the corporate debtor has been placed on record. The applicant has also relied upon Form-26AS for the period of 2015-16 and 2016-17 of the applicant financial creditor in support of its claim. 38. The materials on record and the loan documents clearly depict that the loan was disbursed and the respondent company utilized and enjoyed the loan amount. In fact, there has been an admission of receipt of debt with an assurance to repay the debt. 39. In the aforesaid discussions, it is seen that the applicant clearly comes within the definition of Financial Creditor. The material placed on record further confirms that the applicant financial creditor had di....
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....tor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor." 45. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 46. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made cl....