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2020 (12) TMI 154 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - recovery proceedings under the SARFAESI Act, 2002 by taking possession of the property under Section 13(4) of the SARFAESI Act, 2002 is already in process - validity of initiation of parallel proceedings under IBC, 2016 to recover the said sum from the Corporate Debtor - HELD THAT:- The identical issue fell for consideration before the Hon'ble NCLAT in the matter of Rakesh Kumar Gupta -Vs- Mahesh Bansal & Anr. [2020 (6) TMI 688 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that The pendency of actions under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 does not create obstruction for filling an Application under Section 7 of Insolvency and Bankruptcy Code 2016, specially in view of Section 238 of IBC. The Application is more to bring about a Resolution of Corporate Debtor than any penal action or any recovery proceedings. Thus, it is now trite that pendency of actions under the SARFAESI Act by the Financial Creditor is not a bar for filling an Application under Section 7 of IBC, 2016, especially in view of Section 238 of IBC. Further, the proceedings under IBC, 2016 cannot be said to be a parallel proceedings since the Application under Section 7 of IBC, 2016 is filed to bring about a Resolution for the Corporate Debtor, on the other hand the proceedings under SARFAESI Act, 2002 is for recovery of the amount which is due and payable to the Financial Creditor. Thus, there is a debt and default on the part of the Corporate Debtor and the Corporate Debtor is unable to repay its dues to the Financial Creditor - this Application as filed by the Applicant - Financial Creditor is required to be admitted under Section 7 (5) of the I&B Code, 2016. Application admitted - moratorium declared.
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