TaxTMI 
TaxTMI 
TaxTMI 
2020 (7) TMI 204
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....of Attorney executed on 18-7-2018 has been placed on record. 3. The Respondent Company M/s. Global Infonet Distribution (P.) Ltd. against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 27-12-2007 having its registered office situated at B-3, Friends Colony (West), Main Mathura Road, South Delhi - 110065. 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. 4. The case of the applicant precisely is that a Wholesale Financial-Credit Agreement (hereinafter referred to as the "Credit Agreement") dated March 19, 2014 that had been entered into between the Financial Creditor and the Corporate Debtor. It was agreed between the parties that in the course of Corporate Debtor's business, the Corporate Debtor will acquire information technology products, including computer hardware and software products and the Financial Creditor will finan....
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....er the Consent terms, on or before February 15, 2019, the parties were obligated to discuss and negotiate to agree upon either a payment plan or one time settlement amount, as mutually agreed between the parties in relation to the entire debt amount. However, the Corporate Debtor neither approached the Financial Creditor nor made any balance payment. Accordingly, on the instructions of the Financial Creditor, their present lawyers wrote a letter to counsel of the Corporate Debtor requesting to advice/follow up with the Corporate Debtor to provide a payment plan to the Financial Creditor within seven (7) days from the date of the receipt of the present letter. In view thereof and considering that the Corporate Debtor has failed to comply with its obligations by or before February 15, 2019, they are in breach of the Consent Terms. 12. Therefore, in view of the above, the total amount due to the Financial Creditor is INR 10,08,62,246.33/-. It is pertinent to note that the original amount due to the Financial Creditor was INR 11,08,62,246.33 out of which the Corporate Debtor had paid an amount of INR 1,00,00,000/-. While INR 50,00,000/- was paid before signing of the consent terms, an....
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....he said clause is set out hereinunder: (b) The parties shall on or before February 15th 2019 discuss and negotiate to agree upon either a payment plan for the amount INR 10,21,29,922.74 (after deduction of upfront payment of INR 1,00,00,000/-) along with extension charges amounting to INR 69,74,807.61 and interest of INR 17,57,515.98 or one time settlement amount, as may be mutually agreed between the parties. In the event a payment plan is agreed between the parties in terms hereof, the Corporate Debtor shall handover post-dated cheques for the entire payment plan to the Applicant herein on or before February 15th 2019. The said post-dated cheques shall be drawn in the name of Atradius India Credit Management Services (P.) Ltd." 5. In relation to the obligation under clause 5(b) of the Consent Terms, Global Infonet had also agreed to provide our client with regular updates. However, since last three (3) months, there has been no update from Global Infonet Our Client would like to bring to your land attention that the deadline of February 15, 2019 is fast approaching and it may take substantial time for both the parties of discuss and close the negotiations in accordance with c....
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....the applicant and committed default in payment as per consent terms. Once the respondent already agreed to pay the dues of the applicant it cannot take a U turn and avoid its liability. 24. The respondent has also claimed that the claim of the applicant is an operational debt and not a financial debt. 25. The sole argument of respondent in this regard is that the applicant has sent a demand notice for recovery of its unpaid operational debt on 20-9-2017 and after reply sent by respondent on 3-10-2017 the applicant changed its stand and titled itself as a "financial creditor" of respondent. The respondent has also relied upon the judgment passed in matter of Ruchi Soya Industries Ltd. v. Cooperative Rabobank U.A. Singapore Branch [CP. (IB) Nos. 1371 & 1372 (MB) of 2017, dated 18-5-2018]. However, the judgment relied upon by the respondent has no bearing in the present case because in that order the operational debt was assigned to the petitioner therein, and hence the petitioner was termed as operational creditor and in the present matter no such transfer has been made. 26. It is seen that in the said demand notice the applicant has relied upon the same facts and same Wholesale F....
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....sional and has signed a communication 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. Yogender Pal Singhal 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. 30. 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. 31. It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. The material on record clearly goes to show that respondent had availed the credit facilities and has committed default in repayment of the outstanding loan amount. 32. We are satisfi....
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....ent 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." 38. 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. 6-6-2018, 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 39. 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 clear that all the personnel connected with the Corporate Debtor, its promoters or any other person associated with the Management of....