TaxTMI 
TaxTMI 
2021 (3) TMI 62
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....ary 19, 2019 requesting for a loan of Rs. 1,00,00,000 (rupees one crore only) to meet out its short-term capital requirement. (ii) The financial creditor sanctioned the aforesaid loan amount vide its sanction letter dated January 23, 2019 in the name of corporate debtor. The tenure of loan amount was fixed for six months and term of repayment was bullet payment of entire loan amount at the end of sixth month from the date of disbursement. The loan agreement dated January 29, 2019 was signed and executed with the financial creditor by the corporate debtor as borrower. (iii) It is stated by the financial creditor that out of loan amount, Rs. 35,00,000 was paid to two creditors of the corporate debtor on the written instruction of the corporate debtor on its behalf, and Rs. 65,00,000 was credited in the bank account of corporate debtor on January 30, 2019 to February 25, 2019. (iv) Further, the corporate debtor had issued post-dated cheques of payment of interest and repayment of principal amount. (v) Further, the corporate debtor failed in meeting the payment obligation towards interest and principal amount as agreed and thus breached the terms and....
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....lony, which is owned by Ms. Bani Arora, wife of N. K. Arora. The said deal was offered four years ago and Rajeev Aggarwal had paid some amount towards advance/earnest money. However, the said deal could not be matured as purchaser was unable to pay the settled consideration. (v) In the months of September-October 2018, the said Rajeev Aggarwal offered N. K. Arora that he can arrange funds of Rs. 40 lakhs at present and Rs. 60 lakhs after three months at reasonable rate of interest from one entity named as "Deepraj Investment Ltd.", provided the corporate debtor willing to sign loan documents of Rs. 1 crore and some blank cheques. (vi) Rajeev Aggrawal and financial creditor pretends to help the corporate debtor subject to the condition that he will personally use the funds of Rs. 60 lakhs for period of three months and thereafter, the same will be returned to the corporate debtor along with interest as payable by the corporate debtor to financial creditor. (vii) Rajeev Aggarwal assured that loan documents and security cheques will remain with him and will not be handed over to financial creditor. N. K. Arora, due to dire need of money, accepted the proposa....
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....of annexure to the sanction letter dated January 23, 2019 the "bullet payment of entire loan amount at the end of sixth months from the date of disbursement". (xvi) The corporate debtor had not committed the default in repayment as the financial creditor is required to disburse the total amount, i. e., Rs. 1 crore. (xvii) On September 17, 2019 the financial creditor has presented the cheque of Rs. 1 crore and 2 lakhs towards loan amount and interest without any intimation and having full knowledge that corporate debtor is not liable to pay that amount to the financial creditor. (xviii) The corporate debtor has already filed a complaint on September 20, 2019 vide Diary No. D-31-A dated September 20, 2019 before P. S. New Friends Colony, New Delhi for registration of FIR against Rajeev Aggarwal and director of the financial creditor for initiation of appropriate criminal proceedings. (xix) The corporate debtor has also filed criminal complaint under section 156(3) of the Code of Civil Procedure, 1908 for direction to the concerned official to register an FIR against the said Rajeev Aggarwal and director of financial creditor. (xx) It is pe....
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.... to make payment of Rs. 1,16,79,338.40. 10. Although, no one appeared on behalf of the corporate debtor but the corporate debtor had filed the reply, which we have referred in the aforementioned paragraph. 11. Now in the light of the submission made on behalf of the financial creditor and on the basis of averments made in the application as well as the reply filed on behalf of the corporate debtor, we find that although, the corporate debtor claimed that the present application is not maintainable but in paragraph 7(c), he admits that he executed the loan agreement of Rs. 1 crore as sanctioned is received by the company and also issued the cheques. In paragraph 7(f) of reply, the corporate debtor admit that the financial creditor got transferred Rs. 20 lakhs on January 30, 2019 to the corporate debtor and thereafter Rs. 25 lakhs were also transferred on February 25, 2019. He further claimed in the same paragraph that total amount of Rs. 65 lakhs were transferred by the financial creditor to the account of corporate debtor. He further stated in the reply that the financial creditor has not released the entire loan amount. He further stated in paragraph 7(l) of the reply that i....
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....lication shall be modified to comply with the requirements of the first or second provisos as the case may be within thirty days of the commencement of the said Ordinance, failing which the application shall be deemed to be withdrawn before its admission. 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 other information as may be specified by the Board. (4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), ascertain the existence of a....
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....es, 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 post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the 'debt', which may also include a dispute....
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....ding against the proposed RP or not. So far dispute is concerned like section 9 of the Insolvency and Bankruptcy Code, 2016, in section 7 of the Insolvency and Bankruptcy Code, 2016, proceedings, there is no scope to raise the disputes. Therefore, the averments made in the reply regarding the dispute raised by the corporate debtor is concerned, in our considered view, is not liable to accepted. 14. When we shall consider the case in hand, in the light of aforesaid provision and the decision, then we find that the application is complete and the loan has been disbursed and the same has not been not paid by the corporate debtor, therefore there is default in payment of debt, there is no disciplinary proceedings pending against the RP. Therefore, we have no option but to admit the application under section 7(5)(a) of the Insolvency and Bankruptcy Code, 2016. 15. Accordingly, this petition is admitted. A moratorium in terms of section 14 of the Insolvency and Bankruptcy Code, 2016 shall come into effect forthwith staying : "(a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree....