TaxTMI 
TaxTMI 
2020 (5) TMI 129
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....har/UID No. 680111394548, Rameshwar Chand Mittal date of birth as January 3, 1971 and Identification No. as Aadhar/UID No. ACCPM8510F and Nisha Mittal as date of birth January 3, 1972 and Identification No. as Aadhar/UID No. 631817773845 (annexed as annexure A1). 3. Mr. Pramendra Kumar Mittal, one of the financial creditors, has been authorised to file this application on behalf of other financial creditors. (Authorization has been given through power of attorneys which is annexed as annexure A2 of the application). 4. The respondent-Desiya Hotel and Resorts P. Ltd., incorporated on June 30, 2014 (having its registered office at 32D/229-A/105D-1, Alka Kunj, Kamla Nagar, Dayal Bagh, Agra, UP-282 005, CIN U55204UP2014PTC064603). The authorised share capital of the respondent is Rs. 10,00,000 (rupee ten lakhs only) and issued, subscribed and paid-up share capital is Rs. 1,00,000 (rupee one lakh only). 5. Brief facts related to petition are as follows : (i) Learned counsel for the petitioner stated that the corporate debtor has taken unsecured debt from the applicants amounting to Rs. 1,60,00,000 (rupees one crore sixty lakhs only). (ii) Further stated that a....
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....the name of company secretary Satyendra Sharma, Registration Number IBBI/IPA-002/IP-N00737/2018-19/12260 for appointment as interim resolution professional (IRP). Further IRP has filed a declaration in Form 2 affirming that he is registered insolvency professional and no disciplinary proceedings are pending against him. (Copy of Form 2 is annexed as annexure 4 of the application). (iv) The total amount of debt granted by the financial creditors is Rs. 1,60,00,000 (rupees one crore and sixty lakhs only) and the amount claimed to be in default is Rs. 2,43,47,467 (rupees two crore and forty-three lakhs forty-seven thousand four hundred sixty-seven only) and mentioned the date of default is from the date of notice send by the financial creditors to corporate debtor, i. e., February 18, 2019. (Details is annexed as annexure A1 colly at pages 22 and 23 of the application). 7. Learned counsel appearing for the applicants submitted that the applicants have annexed copy of the balance-sheet of the corporate debtor for the years 2015, 2016, 2017 and 2018. He further submitted that in order to proof the default, the petitioner has annexed the legal demand notice along wit....
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.... the corporate debtor ? (c) Whether the documents attached with the applicant shows that there is default in payment of debt and name of resolution profes sional is proposed to act as IRP and no disciplinary proceedings are pending against the proposed resolution professional ? 10. From the perusal of the averments made in the application, I find the details of depositors is shown in annexure 1 page 12 and as per the averments made in that annexure on August 25, 2014, December 10, 2014 and December 26, 2014, Mr. Pramendra Kumar Mittal deposited Rs. 50,00,000. On August 25, 2014, December 8, 2014 and December 29, 2014 Mr. Rameshwar Chandra Mittal deposited Rs. 55,00,000 and on August 25, 2014 Nisha Mithal deposited Rs. 55,00,000 to the account of Desiya Hotel and Resorts P. Ltd., who according to the applicant is the corporate debtor. 11. I further find in Part IV of the application, on the basis of that deposit shown in annexure 1, the petitioner claim total amount of Rs. 1,60,00,000 (rupees one crore sixty lakhs only), which according to them they have granted as debt to Desiya Hotel and Resorts P. Ltd. I further find that in the petition, the date of default is the....
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....ent the notice of demand to Desiya Hotel and Resorts P. Ltd. 17. In support of his contention the applicants fails to produce any law to prove that in absence of any agreement to repay the amount, the date of default under section 7 of the I and B Code can be treated as the date when the demand notice was sent. 18. It is admitted position of law that to initiate the proceedings under section 7 of the IBC, it is not necessary to sent the notice upon the corporate debtor and that is the main distinction between the provision contained in sections 7 and 9 of the I and B Code and that has been decided by the hon'ble Supreme Court in Innoventive Industries Ltd. v. ICICI Bank [2017] 205 Comp Cas 57, 88 (SC) held : "The scheme of section 7 stands in contrast with the scheme under section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provide) in section 8(1) of the Code. Under section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operat....
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....nnexure 1, comes under the definition of "financial debt" as referred in section 5(8) of the I and B Code and the same is quoted below : "'financial debt' means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest ; (b) any amount raised by acceptance under any acceptance credit facility or its dematerialised equivalent ; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument ; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed ; (e) receivables sold or discounted other than any receivables sold on non-recourse basis ; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing ; Explanation.-For the purposes of this sub-clause,- (i) any amo....