TaxTMI 
TaxTMI 
2019 (8) TMI 1591
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....in Part-IV of the proforma. The total amount disbursed on different dates from 11.02.2013 to 15.04.2015 is claimed to be INR 10,85,00,000/- (Rs. Ten Crore Eighty Five Lacs Only). The said amount was initially provided at the interest rate of 9% per annum for the period of August-November, 2013 which was increased to 12% per annum from December, 2013 and some payment was made on variable rate i.e. 15% per annum. 2. It is the case of the petitioner that in the meantime, the Corporate Debtor repaid the principal amount of Rs. 1,00,00,000/- on 13.04.2015, therefore, the total debt disbursed (principal amount) was Rs. 9,85,00,000/-. Subsequently the Corporate Debtor issued an undated cheque bearing No. 186195 (Annexure I-4) amounting to Rs. 9,85,00,000/- to the Petitioner on 31.07.2015, providing comfort and an assurance of repayment. 3. The Corporate Debtor acknowledged the Financial Debt by providing confirmation of accounts provided in respect of the Petitioner. It provided interest to the petitioner till April, 2016. However, without assigning any reasons whatsoever, it did not make payment towards interest from May, 2016 to 20.01.2017. In January, 2017, the Respondent issued ....
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....tioner company further failed in maintaining a Register of loan in Form MBP 2 as provided under Section 186 (9) & (10). In absence of both such requirements, alleged amount cannot be legally recovered. 3. There is further violation to Punjab Registration of Money Lenders Act, 1938 and Punjab Prohibition of Private Money Lending Act, 2007. Petitioner is neither a Non-Banking Financial Company nor a Notified Financial Institution and neither does the petitioner have any valid license under Punjab Registration of Money Lenders Act, 1937 and/or the Punjab Prohibition of Private Money Lending Act, 2007. 4. The cheque amounting to Rs. 9.85 crores was never executed in its full form by the Respondent as the same was undated and the parties never had any intention to create any security vide the said cheque. 7. We have heard learned counsel for the parties and have also perused the record. 8. Having heard learned counsel for the parties we are of the considered view that the Financial Creditor has succeeded in establishing a case for triggering the Corporate Insolvency Resolution Process. 9. The Financial Creditor has placed on record numerous proof of amount dis....
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....to impress us because the entire cause of action arose to the petitioner in Delhi including the fact that registered offices of both the entities are situated at Delhi and the said act would only apply to the territory of Punjab and Haryana. 14. Moreover, the provisions of Section 238 of the Code contain a widest non-obstante clause which would exclude the application of any other law. In that regard we may place reliance on the observations of Hon'ble the Supreme Court in the para 55 of the judgment rendered in the case of M/s. Innoventive Industries Limited v. ICICI Bank & Anr., (2017) 205 Comp Cas 57 (S.C.). The pertinent observations of Hon'ble the Supreme Court reads as under: "Further, the non-obstante clause contained in Section 4 of the Maharashtra Act cannot possibly be held to apply to the Central enactment, inasmuch as a matter of constitutional law, the later Central enactment being repugnant to the earlier State enactment by virtue of Article 254 (1), would operate to render the Maharashtra Act void vis-a-vis action taken under the later Central enactment. Also, Section 238 of the Code reads as under: "238. Provisions of this Code to overri....
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....cy and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 (2) of IBC is complete in all respects. He has further submitted that the details of the default along with the dates have been stated in part IV and the additional documents have been submitted subsequently along with all the minute details. There is overwhelming evidence available to prove default and name of the resolution professional has been specified who does not suffer from any disqualification. 16. We may now examine the provisions of Section 7 (2) and Section 7 (5) of IBC which read as under:- "Initiation of corporate insolvency resolution process by financial creditor. 7(1) .................. 7 (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3) .................. 7(4) .................. 7 (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professiona....
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....r disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation 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." 22. It is made clear that the provisions of moratorium shall not apply to (a) such transactions which might be notified by the Central Government in consultation with any financial regulator; (b) a surety in a contract of guarantor to a Corporate Debtor. Additionally, the supply of essential goods or services to the Corporate Debtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other services or supplies as provided by Regulation 32 of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 23. The Interim Resolution Profess....