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2019 (1) TMI 84 - AT - Insolvency and BankruptcyCorporate Insolvency Resolution Process - due unsecured loans - Held that:- The Respondents have taken plea that one Sri Bhagya Kalita or for the matter the ‘Corporate Debtor’ had no obligation whatsoever to repay the entire unsecured loans, obtained by the ‘Corporate Debtor’ prior to 15th December, 2014 due to change of management. The Adjudicating Authority has referred to an agreement dated 15th December, 2014, wherein one Sri Bhagya Kalita, who is the Managing Director of the ‘Corporate Debtor’ had agreed to purchase the entire shareholdings of Mr. Rajesh Himatsingka, his son Mr. Kanishka Himatsingka and his daughter-in-law Ms. Neha Himatsingka. Giving reference to their cases and the agreement dated 15th December, 2014, the Adjudicating Authority has exercised inherent power and refused to entertain the application. We are not going on the detailed reason given by the Adjudicating Authority for exercising inherent power as we have already held that the Adjudicating Authority has no jurisdiction to exercise inherent power for deciding any disputed question whether claim is bonafide or malafide. For the reasons aforesaid, we set aside the impugned order dated 15th April, 2018 passed by the Adjudicating Authority in the case of ‘Himatsingka Auto Enterprises’ and remit the matter to the Adjudicating Authority for deciding the matter fresh after notice to the parties.The parties are not given liberty to raise any question or dispute, all matters having already heard and decided in the present appeal. If there is debt and default, the Adjudicating Authority will admit the case. If the application under Section 7 filed by ‘Neha Himatsingka & Anr.’ is admitted in that case the question of admission of the Second application under Section 7 by ‘Himatsingka Auto Enterprises’ against the same ‘Corporate Debtor’ will not arise. ‘Himatsingka Auto Enterprises’ in such case may file claim before the ‘Interim Resolution Professional’ as may be appointed while dealing with the case of ‘Neha Himatsingka & Anr. Vs. Himatsingka Resorts Private Limited’.
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