2019 (9) TMI 1455
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....ed to file this application on behalf of Financial Creditor. (The Copy of the general power of Attorney is annexed as Annexure I of the application). 3. The Respondent "M/s Shahjahanpur edibles Private Limited" is a private limited company duly incorporated on 12.03.2014 (Having its Registered Office at, Rausar Kothi Road, Village- Mishripur, District- Shahjahanpur CIN U15400UP2014PTC063318). The authorised share capital of respondent is Rs. 1,80,00,00,00/- (Rupee Eighteen Crores Only) and Paid- Up share Capital is Rs. 1,80,00,00,00/- (Rupee Eighteen Crores Only). 4. Brief facts related to petition are as follows: i. The learned counsel for the applicant submitted that the corporate debtor vide its board resolution dated 25.03.2014 and 24.04.2014 resolved to avail cash credit and term loan facilities from the applicant bank. The corporate debtor company through its directors approached the applicant bank for grant of term loan facility and cash credit facility which was duly considered and sanctioned by the applicant bank vide its credit sanction intimation dated 23rd April, 2014 through which cash credit facility of Rs. 3,00,00,000/- and term loan facility of Rs. 7,00,00,000/-....
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....movables/assets/debts (ID 12004) c. Letters of undertaking/declaration from the borrowers (ID 13001) v. Further the counsel for the applicant submitted that, to secure aforesaid credit facility of Rs. 11,11,84,000/- availed by the corporate debtor, (1) Sri Shiv Kumar Agarwal, (2) Sri Ishwar Chandra Agarwal, (3) Mrs. Laxmi Devi Agarwal, (4) Mrs. Anita Agarwal, (5) Sri Sumat Prasad Jain, (6) Sri Samaksh Jain, (7) Mrs. Sharanjeet Jain, (8) Mrs. Madhu Jain have given their personal guarantees for repayment of repayment of aforesaid facilities together with stipulated interest availed by corporate debtor and inconsideration thereof have jointly executed, signed and delivered to the financial creditor/applicant bank Guarantee Agreement (ID-12001) dated 28.06.2016 acknowledging therein their liability to repay the same as equal and co-extensive with the principle borrower. vi. Further submitted that, after availing the aforesaid credit facilities from the financial creditor/applicant bank as well as enhancement/renewal of the same, the corporate debtor has failed and neglected to keep its accounts regular and in order as well as to pay stipulated instalments in its term loan account....
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.... in response to the reply of the Corporate Debtor with regard to the objection to the allotment, of the account to the recovery agency, the Financial Creditor through letter dated 11.04.2019 has advised the Corporate Debtor to cooperate for settlement of account and the respondent company with the intention of settling the accounts, is ready to cooperate with the Financial Creditor however the Financial Creditor has wrongly mentioned that a sum of Rs. 10,62,59,056.75 is due upon the Corporate Debtor thus prays for the present petition to be dismissed. xi. Further submitted that, since the above mentioned amount is highly disputed and has not only been admitted by the respondent/Corporate Debtor but the Financial Creditor has wrongly prepared the accounts and in connivance with the Mrs. Madhu Jain, Samksh Jain, Mrs. Sharangeet Jain, Sumat Prasad Jain filed the present Company petition. xii. In the reply to the counter affidavit, the learned counsel for the applicant submitted that as per IB Code, 2016 the directors of the company are not necessary and proper party as it relates only to financial creditor and corporate debtor and if there is any debt and default on the part of co....
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....ion of Section 7(1), (2), (3) as quoted below : Section 7: Initiation of corporate insolvency resolution process by financial creditor: (I) A financial creditor either by itself or jointly with [other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government] may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Explanation. --For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (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. (3) The financial creditor shall, along with the application furnish-- (a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any othe....
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....by the "financial creditor" to satisfy itself that a default has occurred. Other considerations, such as the existence a dispute or discrepancy are irrelevant, so long it has not been disputed the same debt is due and is payable to the financial creditor and the corporate debtor has defaulted." 12. Therefore, in view of the aforesaid decisions, I would like to consider whether petitioner has succeeded in establishing the fact that there is financial debt or default in part of corporate debtor in making payment of debt. 13. From the perusal of averments made in the application filed on behalf of petitioner, in counter affidavit filed by the respondent and reply to the counter affidavit filed by the petitioner, this adjudicating Authority finds, in Para 37 of the Counter affidavit that the Corporate Debtor admits that debt and offered to settle the amount and his only grievance is in respect of amount. According to the Corporate Debtor, the amount is wrongly mentioned and the Corporate Debtor has not disputed about the debt. 14. Hence, the application filed on behalf of financial creditor/Applicant under Section 7 of IBC is found complete. It further appears that there is default ....