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2020 (10) TMI 8 - NATIONAL COMPANY LAW TRIBUNAL , INDORE BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to amke repayment of its dues - existence of debt and dispute or not - pendency of SARFAESI proceeding - HELD THAT:- The present application has been filed by the Financial Creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy before this Adjudicating Authority to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor - It may not be out of place mention here that the Corporate Debtor has been declared as Willful Defaulter by the Bank of Baroda, which categorically demonstrates the intentions of the Corporate Debtor. It is a settled legal position that the pendency of SARFAESI proceeding or other disputes do not prevent a Financial Creditor to trigger the C.I.R.P. because the nature of remedy being sought for under the provisions of the I.B. Code is "Remedy in Rem" in respect of the CD. The Cash Credit and Term Loan facilities were sanctioned by the Petitioner Bank and the same were availed by CD, M.P. Agro BRK Energy Foods Limited. The Charges have been filed by the CD with RoC and the Financial Creditor has filed valuation report and search report - The CD has defaulted in making repayment of loan/credit facilities to the Petitioner Bank and the date of default is 30.09.2017. The Statement of accounts and the CIBIL Reports submitted by the applicant Bank confirm the debt is due and default has been committed by the Corporate Debtor - The Petitioner Bank has filed the petition within the period of limitation, as the last credit has come to the account on 31.08.2018 when this application has been filed on 22.10.2018 which is within 3 years of last payment. The present I.B. Petition is filed by the duly authorised official of the Applicant Bank in a prescribed format under Section 7 of the I.B. Code annexing copies of loan documents confirming the existence of debt due and defaulted and proposed a name of Resolution Professional to act as an Interim Resolution Professional (IRP). This Adjudicating Authority is satisfied that, (a) The Corporate Debtor availed the loan /credit facilities from the Financial Creditor Bank. (b) Existence of debt is above Rs. One Lac; (c) Debt is due; (d) Default has occurred on 30/09/2017; (e) Petition had been filed within the limitation period as the last payment of INR.2,50,000.00 has come to the account on 31.08.2018 whereas this petition has been filed on 22.10.2018; (f) Copy of the Application filed before the Tribunal has been sent to the Corporate Debtor and the application filed by the Petitioner Bank Under Section 7 of IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. (g) The Applicant's submission in IA 249 of 2019 that no such settlement proposal is pending before the Financial Creditor is taken record IA is thereby disposed of. Hence, the present IB Petition is admitted with the following Directions/observations. The date of admission of this petition is 05.03.2020 - petition admitted - moratorium declared.
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