TaxTMI 
TaxTMI 
2021 (3) TMI 62
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....(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 conditions of sanction letter and loan agreement. Cheques No. 482041, dated May 1....
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....nt 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 proposal of Rajeev Aggarwal and handed over the blank and semi-blank documents to him on January 29, 2019 in presence of Shri Manish Mehra accountant and Mr. Veeresh Ku....
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.... 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 pertinent to mention that the corporate debtor in lieu of promised disbursement of Rs. 1 crore only a sum of Rs. 65 lakhs has been disbursed and moreover out of Rs. 65 lakhs the corporate debtor has transferred Rs. 25 lakhs to Prime View Portfolio Consul....
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....f 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 in the sanction letter dated January 23, 2019 (in clause 15) it is mentioned that bullet payment of entire loan at the end of six (6) months from the debt of disbursement, hence the corporate debtor has not committed the default in repayment and so there is no defa....
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....s 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 default from the records of an information utility or on the basis of other evidence furnished by the financial creditor under sub- section (3) : Provided that if the Adjudicating Authority has not ascertained the existence of default and passed an order under sub-section (5) within such time, it shall record its reasons in writing for th....
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....rds 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 disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within seven days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authorit....
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....ase 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 or order in any court of law, Tribunal, arbitration panel or other authority ; (b) transferring, encumbering, alienating or disposing of by the corporate debt or 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 Financia....