TaxTMI 
TaxTMI 
2020 (2) TMI 911
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....nd its CIN No. is U15310CH2005PLC02846. The application is signed by Ritika Garg, Company Secretary/Authorized Representative of M/s V.I.R. Foods Ltd. Her affidavit verifying the contents of the application is at pages 33 to 36 of the petition. The Board resolution authorizing Ritika Garg to file the case/application against the corporate debtor on behalf of the financial creditor to nominate, appoint and engage advocates, solicitors, counsel or other professionals (including but not restricted to Insolvency Professional) and retainers and to do all other acts, deeds, matters and things necessary/incidental/consequential and ancillary in this behalf and also ratifying her actions already undertaken, is filed as Annexure A-1, vide Diary No.1395 dated 03.05.2018. 2. The copy of certificate of incorporation and master data of corporate debtor is at Annexure A-3 of the petition. The corporate debtor is stated to be incorporated on 13.07.2009 and the registered address is stated to be at SCO 2437, Sector 22 C, Chandigarh-160022. Therefore, the jurisdiction lies with this Bench of the Tribunal. 3. It is stated that upon specific approach made by the corporate debtor to the financial cr....
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....rporate debtor while denying the CP averments, raised various grounds and submitted that the instant petition is liable to be dismissed in view of said grounds. 6. We have heard the learned counsel for the petitioner and learned senior counsel for the respondent and have perused the pleadings on record. 7. The learned senior counsel appearing for the respondent-corporate debtor, inter alia, raised the following grounds in support of his averments.- (i) The petition is not filed by a valid and properly authorized person. (ii) The CP is liable to be dismissed as the same is barred by the period of limitation. (iii) There is no time value of money involved in the transactions between the petitioner and respondent-corporate debtor and hence, the CP is not maintainable. (iv) The petitioner concealed various facts from this Tribunal and also misrepresented before this Tribunal, thus, CP is liable to be dismissed. The documents relied upon by the petitioner are forged and fabricated documents. (v) The alleged debt is not a financial debt and the petitioner is not a financial creditor. 8. (i) The instant petition is filed by Ritika Garg. The Board Resolution authorizing Ritika....
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.... books of accounts have not shown any interest as alleged to have been provided under the MOU. But once the MOU executed between the parties provides for payment of interest, the requirement of time value of money, as per the Code, is satisfied. Accordingly, we reject this contention of respondent also. (iv) The various contentions raised by the respondent-corporate debtor with regard to fabrication and forgery of documents by the petitioner and also various allegations with regard to transactions entered into between the parties, need not be gone into in detail for the purpose of consideration of admission of this CP under the provisions of the Code and the Regulations made thereunder and in view of the clear admission of the debt amount of Rs. 43 lacs by the corporate debtor to the petitioner-financial creditor under the heading unsecured loan in Annexure A-16 i.e. Auditor's report of the respondent-corporate debtor itself. For the same reason there is no necessity to delve upon the other contentions of the respondent-corporate debtor that there is no debt due and payable to the petitioner. (v) In Shailesh Sangani v. Joel Cardoso [2019] 152 SCL 657 (NCL - AT) 2019 SCC OnLin....
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....stakeholders and that is the time value of the money constituting the consideration for disbursement of such amount raised as debt with obligation on the part of Company to discharge the same. Viewed thus, it can be said without any amount of contradiction that in such cases the amount taken by the Company is in the nature of a 'financial debt'" In view of the decision of the Hon'ble National Company Law Appellate Tribunal in Shailesh Sangani case (supra), in our view, the contention of the respondent-corporate debtor that the petitioner is not a financial creditor and the debt due is not a financial debt is also to be rejected. 9. In view of the aforesaid facts and admission of debt by the respondent-corporate debtor, various decisions on which the learned counsel for the respondent has placed reliance have no application to the instant case. 10. The Hon'ble Supreme Court in the case of Innoventive Industries Ltd. v. ICICI Bank Ltd. [2017] 143 SCL 625 held as under:- "27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in sect....
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.... 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 admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 29. The scheme of section 7 stands in contrast with the scheme under section 8 where an operational....
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....ct 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. (vi) It is further directed that the supply of essential goods or services to the corporate debtor as may be specified, shall not be terminated or suspended or interrupted during moratorium period. The provisions of section 14(3) shall however, not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator and to a surety in a contract of guarantee to a corporate debtor. (vii) The order of moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33 as the case may be. (viii) The following directions are issued in respect of the appointment of the Interim Resolution Professional:- (i) Appoint Mr. Madan Gopal Jinda....