TaxTMI 
TaxTMI 
2019 (9) TMI 1459
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....nd Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The petition reveals that various facilities were sanctioned/renewed from time to time to the corporate Debtor. The summary of the facilities sanctioned as per the loan and security documents on 02.11.2009 & 28.05.2010 are as follows; Nature of facility Amount Term Loan-1 70,00,000.00 Term Loan 27,50,000.00 BG 85,00,000.00 3. The Term Loan for Rs. 27,50,000.00 (Rupees Twenty-Seven Lakh and Fifty Thousand) is closed on 24.03.2012 and the term loan of Rs. 73,12,758. 12 (Rupees seventy-three lakhs Twelve thousand seven hundred and Fifty-Eight and Paisa Twelve Only) as on 27.07.2018, together with subsequent interest at the rate of 18.75 % Per annum with monthly rest and bank guarantee of Rs. 2,66,75,776.40 (Rupees Two Crores Sixty-Six Lakhs Seventy-Five Thousand Seven Hundred and Seventy-six and paisa Forty only) as on 27.07.2018, together with subsequent interest at the rate of 22.95% per annum with monthly rest. The total amount due on 27.07.2018 Rs. 3,39,88,534. 52 (Rupees Three Crores and Five hundred and thirty-Four and paisa Fifty-Tw....
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.... to initiate Corporate Insolvency Resolution Process against Corporate Debtor M/s. Sargam builders Private Limited under Insolvency and Bankruptcy Code under Section 7 Rule 4. 9. Per Contra, The Learned counsel for Corporate Debtor Respectfully submitted that the application submitted by the applicant bank is not maintainable since the debt/default is primarily disputed; additionally, the application is incomplete and has not been filed in conformity with the provisions of the Insolvency and Bankruptcy Code 2016, read with the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016. 10. The Application that is being preferred Under Section 7 of IBC is based on power of attorney, which is neither admissible nor is it valid, and a mere perusal of the Power of Attorney reveals that the same has been executed in the year 2007, due to which such power was only extended to representations made before the Company Law Board and not to the National Company Law Tribunal and therefore the same cannot be taken as an authority to confer the power to institute the proceedings under the Insolvency and Bankruptcy Code, 2016. Further, current designation held by the Appli....
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.... to explain the delay within a reasonable period to find out whether there are any laches on the part of the Applicant. 13. It is submitted that, in the meanwhile, the Hon'ble Supreme Court by applying the principle initiated in B. K. Educational Services Pvt. Ltd. vs. Parag Gupta & Associates (2018 SCC Online SC 1921)" has Passed another judgment in Vashdeo R v. Abhyudaya Co- operative Bank Ltd. & Anr (2018), wherein it was held that the question in the above case is covered by this decision. 14. The Corporate Debtor submitted that demand/recall notice dated 15 January. 2013, which is produced in FORM 1 application, is challenged by the Respondent in S.A No. 423 of 2013 as provided under section 17 of SARFAESI Act, 2002. And I.A. No. 1617 of 2013 was filed in the above said S.A praying to stay all further proceedings contemplated in the said demand notice/recall notice. The applicant did not vacate the stay so far, instead of seeking specific concurrence of the DRT, the applicant by supressing the fact, has already withdrawn the said demand/recall notice before the DRT-1 Ernakulam for invoking the petition before this Tribunal. 15. The Corporate debtor further content....
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....1, it is submitted as follows: in this part, particulars of financial debt documents records and evidence of default are sought to be filled in. further particulars of security held, the date of its creation, its estimated value are sought to be filled in this column/row. And with regard to Part-v, Column 2, row 2 of FORM 1, it is submitted as follows: in this row particulars of an order of a court, Tribunal or Arbitral panel adjudicating on the default is sought to be refilled in. But that is not filled by the Financial Creditor. In Column-V Row 2 the latest copy of financial contract reflecting all amendments and waivers to date are sought to be filled in. And in Column 7 Row 2 The Certificate under the Banker's Book of Evidence Act 1891 is missing. Finally, in FORM 1 Column 8, the other documents attached to the applications in order to prove the existence of financial debt, the amount and date of default are sought to be filled in. In this row, it is pertinent to note that the applicant has deliberately suppressed the compensation and counterclaiming amounting to Rs. 18,31,15,515.02 filed against the applicant. In OA filed by the applicant comes to only 1,10,25,692.86. So, ....
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....owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. "28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor - it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered p....
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.... of rupees one lakh or more (Section 4). The IBC provision may be trigger by financial creditor or operational creditor. 24..In the instant case as stated the debt is claimed by financial creditor is more than 1 Lakh Rupees. Again, as discussed herein before the Financial Creditor has proved that an amount of term loan along with bank guarantee was disbursed against the consideration for the time value money which was defined under Section 5(8) of the code. 25. It is also appearing that Financial Creditor has ably proved that they have followed all the Particulars mentioned Under Section 7 to trigger the process against a Corporate Debtor. Here in the Instant case it also appears that the debt claimed by the Financial Creditor due from the Corporate Debtor is also payable in Law as well as in Fact. 26. It also appears that Corporate Debtor did not able to show that there was a pre-existing dispute in the aforesaid debt between Corporate Debtor and Financial Creditor. 27. It is also important to note that Learned Counsel for Corporate Debtor during Arguments submitted that the case is barred by Limitation. Learned Counsel to fortify this argument submitted that in B. K. ....
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....Thus, the claim of financial creditor in the instant case cannot be said to be a debt which is time barred. 32. This adjudicating authority having satisfied with the fact stated by petitioner, the Corporate Debtor defaulted in making payment towards the liability to the petitioner, Hence the petition deserves to be Admitted. Therefore, TIBA/7/KOB/2019 is hereby ADMITTED. 33. That this Bench hereby appoints, Jasin Jose Ponmattam Madaserry House Mookkannoor P.O. Angamaly Ernakulam -683577, a registered Insolvency Professional having registration No. IBBI/IPA- 001/IP-P00695/2017-2018/11225 (Mobile no. 7760031329 Email id- [email protected] as an Interim resolution Professional, to carry out the functions as mentioned under I & B Code, and given his Declaration; no disciplinary proceedings are pending against them. 34. In pursuance of Section 13(2) of the Code, this Tribunal direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code. We also declare moratorium in terms of Section 14 of the Code. A necessary consequence of the moratorium flows from the prov....