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2019 (7) TMI 1838 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - proceedings under the SARFAESI Act, 2002 - overriding effect of IBC - HELD THAT:- The Corporate Debtor has acknowledged its debt in the Balance Confirmation Letter dated 07.01.2015 and 30.06.2015 and has admitted to its liability in the Reply Letter dated 17.02.2016 issued by the Corporate Debtor in response to the Notice under section 13(2) of the SARFAESI Act, 2002 dated 05.02.2016 - The Corporate Debtor has not disputed the fact that it has received the loan under the Secured Business Loan Scheme. Further, the Corporate Debtor has not disputed that it has to repay the amounts so received as a loan. The Corporate Debtor and its Directors have also executed a deed of guarantee and personal guarantees dated 05.03.2014, and various other undertakings that the secured assets of the Corporate Debtor shall not be transferred. The Corporate Debtor has failed to maintain the financial discipline to repay the loan amounts and has not taken any efforts to make the necessary payments - The Corporate Debtor’s submission that the said petition deserved to be dismissed on the ground that the Petitioner has already initiated proceedings under the SARFAESI Act, 2002 and a special civil suit is an untenable argument. In this regard, it is imperative to mention here that section 238 of the Insolvency and Bankruptcy Code, 2016 provides that the provisions of the Code shall have an overriding effect and therefore the proceedings under the SARFAESI Act, 2002 or any other proceedings are no bar to initiate proceedings under section 7 of the I&B Code. The Application under sub-section (2) of Section 7 of I&B Code, 2016 is complete. The existing financial debt of more than Rupees One Lakh against the corporate debtor and its default is also proved. Accordingly, the petition filed under section 7 of the Insolvency and Bankruptcy Code for initiation of Corporate Insolvency Resolution Process against the Corporate Debtor Deserves to be admitted. Petition admitted - moratorium declared.
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