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2020 (10) TMI 382 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make the repayment of its dues - time limitation - amount due and payable by the Corporate Debtor to the Financial Creditor or not - whether petition has been preferred for the purposes other than resolution of the Corporate Debtor? - incompleteness of Form 1 filed by the Financial Creditor in terms of its Part IV. Time Limitation - also alleged that the petition has failed to establish that the outstanding amount is within period of limitation - HELD THAT:- This contention of the Corporate Debtor does not stand upon a careful reading of the Annual Report of the Corporate Debtor for the year ended on 31/03/2017 wherein it is evident that the first default occurred on 23/09/2016 and the said petition has been filed in the month of August, 2019. Moreover, the Balance Sheet, of the Corporate Debtor dated 06/05/2019 also clearly mentions that the amount is due upon them, which is a clear admission on their part. Also, during assignment of the loan by State Bank of India to the Financial Creditor, there has been an acknowledgement by the Corporate Debtor vide their letter dated 18/11/2016. Therefore, it can be safely concluded that any problem regarding the issue of limitation does not arise as the petition was filed on 9/08/2019 and thus, is well in time i.e. before the completion of three years. Amount due and payable by the Corporate Debtor to the Financial Creditor or not - HELD THAT:- This contention raised by the Corporate Debtor that no amount is due and payable by the Corporate Debtor to the Financial Creditor also does not survive because the Annual Report of the Corporate Debtor for the year ended on 31/03/2019 itself acknowledge the outstanding loan payable to the Financial Creditor. Also, it is to be noted that at the time of assignment of the matter to the Financial Creditor, the loan account of the Corporate Debtor in the books of the assignor was a Non-Performing Asset (NPA). There is no doubt that the Adjudicating Authority needs to satisfy itself that the default has occurred before admitting an application under Section 7 of the IBC, 2016. Therefore, after perusing the documents, it has become crystal clear that the Corporate Debtor is liable to pay the outstanding dues to the Financial Creditor. Whether petition has been preferred for the purposes other than resolution of the Corporate Debtor? - HELD THAT:- The Corporate Debtor has relied upon the minutes of the Joint Lenders Meeting dated 17/05/2018 and 23/07/2018 and contended this petition is merely an arm twisting method on the part of the Financial Creditor. Also, it can be made out from the past conduct of the Financial Creditor that they made efforts to restructure the debt of the Corporate Debtor and therefore, this cannot be used by them to shield themselves from their existence liability. In this present matter, this Bench has already established the existence of debt and the default on the part of the Corporate Debtor and therefore, this Bench is of the opinion that only because of this, the present petition has been preferred by the Financial Creditor against the Corporate Debtor. Incompleteness of Form 1 filed by the Financial Creditor in terms of its Part IV wherein it is necessary to provide the date from which the debt fell due - HELD THAT:- This contention is merely technical in nature which can be easily rectified if the Bench directs so. Also, it was stated that the petition is to be dismissed for the reason that the petitioner failed to submit information from Information Utility. But we are of the opinion that while dealing with these objections this Bench finds no cogent reason/ground for rejecting this petition on such minor technical issues particularly when the existence of debt and default is established - There was also a Demand Notice dated 17/06/2019 sent by the Financial Creditor to the Corporate Debtor demanding the outstanding amount along with interest amounting to ₹ 68,10,47,170/- there was neither any reply to this notice nor was any payment made by the Corporate Debtor. Also, it is to be noted that this petition fulfils all the requisite conditions to admit a petition under Section 7 of the Insolvency and Bankruptcy Code, 2016 and therefore, the petition deserves to be admitted. This Adjudicating Authority, on perusal of the documents filed by the Creditor, is of the view that the Corporate Debtor defaulted in repaying the loan availed. In the light of above facts and circumstances, the existence of debt and default is reasonably established by the Financial Creditor as a major constituent for admission of a petition under section 7 of the I&B Code. Therefore, the Application under sub-section (2) of Section 7 is taken as complete, accordingly this Bench hereby admits this Petition - application admitted - moratorium declared.
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