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Insolvency and Bankruptcy - Case Laws
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2021 (1) TMI 1307
Contempt petition - handing over of the records etc. by the Resolution Professional has been complied with - HELD THAT:- Nothing survives for consideration in this Contempt Case. Proceedings are accordingly dropped.
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2021 (1) TMI 1303
Denial of revival of petition by invoking Rule 11 of the NCLT Rules, 2016 - non-compliance with the settlement terms - HELD THAT:- It appears that the Terms of Settlement providing a repayment schedule was incorporated in the order thereby making it an order/ decree of the Court and once this was the position, giving liberty to the Financial Creditor to come back can be interpreted on no hypothesis other than that the revival of CIRP would be sought for non-compliance with the Terms of Settlement. Therefore, even on merit, there are no substance in the instant appeal.
Appeal dismissed.
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2021 (1) TMI 1279
Valuation - Liquidation of Corporate Debtor - allegation that the Reserve price of ₹ 52.83 Crores has been kept at a dismal low - valuation is challenged on the ground that valuers have proceeded on the basis of wrong assumption that the land in question is Agricultural in nature, whereas, it is an industrial land - Regulation 35(3) & (4) of the IBBI (Liquidation Process)’ Regulation, 2016 - HELD THAT:- The appeals are dismissed.
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2021 (1) TMI 1274
Maintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Debtor was classified as NPA on 30th September, 2013 and application filed on 10th June, 2019 - whether application was barred by limitation or not - HELD THAT:- Issue notice upon Respondent. Notice on behalf of Respondent No.2 is waived and accepted by Mr. Aditya Dewan, Advocate. No further notice need be issued to him.
Let notice be issued upon Respondent No.1. Appellant to provide mobile Nos./ e-mail address of the Respondent No.1. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within three days.
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2021 (1) TMI 1271
Partial rejection of claim of applicant - seeking to follow procedures established by law and principles including principles of fairness, impartiality and transparency in the conduct of Corporate Insolvency Resolution Process (CIRP) - seeking to restraint RP from creating any third-party interest - HELD THAT:- The RP has rightfully partially accepted the applicant’s claim after due consideration of the documents provided to the IRP/RP. It is further observed that the RP has acted in accordance with the provisions of the Code and the applicable rules and regulations made thereunder and also followed the principles of law including the principles of fairness, impartiality and transparency.
It is clear from the facts of the case that out of total settlement amount of Rs.12,00,00,000/- agreed between the parties as provided in the Consent Terms, the applicant had received substantial amount of Rs.10,00,00,000/- towards principal outstanding at the time of signing the Consent Terms and Rs.1,00,00,000/- less applicable TDS towards interest and thus the balance outstanding was Rs.1,00,00,000/- only. Therefore, this application needs to be dismissed and there is no wrong committed by the RP in deciding upon the claim of the applicant.
Application dismissed.
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2021 (1) TMI 1270
Seeking reconsideration of Scheme of Compromise and Arrangement under Section 230 of the Companies Act, 2013 - HELD THAT:- The order of the National Company Law Appellate Tribunal GURURAJ S KULKAKARNI & ORS. VERSUS GUJARAT NRE COKE LTD. IN LIQUIDATION THROUGH LIQUIDATOR MR. SUMIT BINANI [2020 (11) TMI 1072 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that no change in circumstances warranting reconsideration at the hands of the Adjudicating Authority was made out and the Adjudicating Authority was right in dismissing the application.
The appeals are accordingly dismissed.
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2021 (1) TMI 1258
Rejection of claim of the Appellant relating to provident fund dues - rejected partially ignoring the mandate of Section 36 of the Insolvency & Bankruptcy Code, 2016 as also order of Division Bench of NCLT, Mumbai Bench in case of Precision Fasteners Ltd. v. Employees’ Provident Fund Organization [2018 (9) TMI 1532 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI].
HELD THAT:- Issue notice upon Respondents. Appellant to provide mobile Nos./ e-mail address of the Respondents. Notice be issued through e-mail or any other available mode. Requisites along with process fee be filed within two days.
List the appeal ‘for admission (after notice)’ on 5th February, 2021
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2021 (1) TMI 1256
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- The Operational Creditor filed this application under assumption that it will get the benefit of Section 18 of Law of Limitation to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor - Bare reading of provisions of Section 18, Law of Limitation shows that such acknowledgement of debt must be within three (03) years from the date, on which, such debt became due and payable. 5. In this case, the debt was due and payable in the year 2006, whereas, so called acknowledgement of the debt by the Corporate Debtor was made in 2015, i.e. beyond the period of three years.
Considering the provisions of Law of Limitation, in Section 18 read with Article 137, it is held that this proceeding is not maintainable as it is filed beyond the period of limitation - application dismissed.
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2021 (1) TMI 1250
Joint request has been made for adjournment of the appeal to 1st April, 2021 - Recovery of balance dues - HELD THAT:- Since IRP is not in attendance, let a notice be served upon him through electronic mode to appear and file status report in regard to CIRP.
Let the matter be fixed on 6th April, 2021.
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2021 (1) TMI 1247
Seeking direction to Corporate to provide information about the required number of Allottees - directing maintenance of status quo with respect to pending applications - HELD THAT:- The impugned order does not adjudicate upon any right in regard to triggering of Corporate Insolvency Resolution Process. By merely directing the Corporate Debtor to provide information to the Respondent – Allottee to meet the threshold criteria to initiate the class action in the face of the ordinance laying such threshold limit, no legal right vested in the Appellant /Corporate Debtor can be said to have been infringed. In this age of transparency, knowledge and information revolution coupled with the fact that adequate information as required by the Respondent – Allottee is not displayed on the website of the Corporate Debtor, as emanating from the impugned order, the impugned order cannot be termed to be erroneous or unsustainable.
In so far as the direction given by the Hon’ble Apex Court is concerned, it is in regard to initiation or continuance of Corporate Insolvency Resolution Process in the pending cases wherein status quo is directed to be observed. The order of Hon’ble Apex Court cannot be interpreted to hold that the requisite information for initiating class action by an allottee under Section 7 of the I&B Code to meet the threshold criteria laid down under the ordinance cannot be provided, more so when the Corporate Debtor and the Regulator are under legal obligation to display the particulars in regard to allottees on their websites. No prejudice can be claimed by the Appellant on account of the direction in so far as the same relates to providing information in regard to allottee for limited purpose of enabling it to garner necessary support for initiating class action.
The appeal is disposed off with the direction that the Corporate Debtor will display the information in regard to the allottees with full particulars on its website within two weeks from today and that in the event Respondent – Allottee approaches the Appellant for providing necessary information, same shall be provided to the Allottee by the Appellant.
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2021 (1) TMI 1238
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial creditors - existence of debt and dispute or not - HELD THAT:- The petitioner has failed to establish that the Unsecured Loan he has granted falls within the scope of “Financial Debt” in the absence of any Loan Agreement/board Resolution setting out the terms & conditions of the agreement.
Also, we shall not go into the question of whether any amount is due from the Corporate Debtor to the Petitioner or not here and shall only limit us to the issue that whether the petitioner has fulfilled the characteristics of a “Financial Creditor” as defined under Section 7 of the Code or not.
Due to the insufficient evidence/documents provided by the petitioner in the present case, this application is hereby rejected.
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2021 (1) TMI 1235
Liquidation of Corporate Debtor - Sections 33(1), 33(2) and 33(3) of the I&B Code, 2016 - HELD THAT:- There are no reason to interfere with the impugned order - appeal dismissed.
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2021 (1) TMI 1234
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - personal guarantor to Corporate Debtor - Personal Guarantors are different entities or not - prerequisite for maintainability of an application under Section 95 of the IBC, 2016 - HELD THAT:- It is seen from the records that the Hon’ble NCLAT passed an order setting aside the order of admission of CIRP against the Corporate Debtor vide order dated 09.09.2021 granting time to the Corporate Debtor to settle the dues of Union Bank of India within six months, and liberty to proceed with Insolvency Resolution Process against the Corporate Debtor in the event of default. Since the debt of the Respondent/Creditor herein was not cleared they have filed application under Section 7 of IBC before this Tribunal against the Corporate Debtor and the same is now pending before this Tribunal. Hence, as far as the Creditor SBI is concerned, there is a CIRP pending against the Corporate Debtor.
Hon’ble Supreme Court in Lalit Kumar Jain Vs. Union of India and Ors [2021 (5) TMI 743 - SUPREME COURT] upheld the constitutional validity of the notification by which Section 2(e) was inserted. It was categorically held that personal guarantors, in view of their intrinsic connection with Corporate Debtors shall be dealt differently through same adjudicating process as Corporate Debtor. The impugned notification, similarly inter alia makes the provisions of the Code applicable in respect of Personal Guarantors to Corporate Debtors, as another such category of persons to whom the Code has been extended.
Moreover, the State Bank of India who filed the IBAs under consideration already filed CP(IB)/43/KOB/2021 which is pending adjudication. The Hon’ble NCLAT only set aside the Order passed in favour of the Union Bank of India against the Corporate Debtor. The Guarantors of the Corporate Debtor may be the same in both Insolvency Applications, but as per the decision of the Hon’ble Supreme Court, the Personal Guarantors are different entities and the Creditors may initiate Insolvency Resolution Process against them.
In a situation where Application(s) in relation to the Corporate Debtor for initiation of CIRP is pending at National Company Law Tribunal (NCLT) then, initiation of CIRP of the Corporate Debtor is not a prerequisite for maintainability of an application under Section 95 of the IBC, 2016 filed for initiating Insolvency Resolution Process against the Personal Guarantor of that Corporate Debtor before the NCLT - Application dismissed.
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2021 (1) TMI 1232
Dissolution of the corporate person - Section 59(7) of the Insolvency and Bankruptcy Code, 2016 r/w Regulation 38 (3) of IBBI (Voluntary Liquidation Process) Regulations, 2017 - HELD THAT:- All necessary compliances are met by the Company under Liquidation and the Liquidator. Therefore, this Authority in exercise of the powers conferred under Sub-section (8) of Section 59 of I&B Code, 2016, do hereby orders the dissolution of the Corporate Person viz., Tennant Cleaning Systems India Private Limited, from the date of this Order.
The Corporate Person stands dissolved, and the Liquidator stands relieved, who is directed to preserve a physical or an electronic copy of the reports, registers, and books of account, referred to in Regulations 8 and 10 of IBBI (Voluntary Liquidation Process), Regulations, 2017, for at least eight (8) year after the dissolution of the Corporate Person, either with himself or with an information utility.
Application allowed.
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2021 (1) TMI 1231
Seeking liquidation of the Corporate Debtor as a going concern - forfeiting the performance security and to initiate penal action as per section 74 (3) of The Insolvency and Bankruptcy Code, 2016 - Resolution Plan has been already approved by this Tribunal - whether the applicant has any locus standi to file the applications, especially for liquidating the Corporate Debtor when a Resolution Plan has been already approved by this Tribunal and the Resolution Applicant has taken over the Corporate Debtor and its properties, as also the revival of the Corporate Debtor factory is under process?
HELD THAT:- If the Corporate Debtor acts in a manner that infringes the norms of the Resolution Plan, then that can be contested. Moreover, any stakeholder’s right stands violated as a consequence of this infringement, he can make an application to the Adjudicating Authority for liquidation of the Corporate Debtor as per Section 33 (3) of the Code - A liquidation proceeding shall be initiated only when the Corporate Insolvency Resolution Process fails. Section 33 of the Insolvency and Bankruptcy Code, 2016 sets out the conditions laying down three scenarios wherein liquidation proceedings can be initiated against the Corporate Debtor. In a situation where a Resolution Applicant succeeds as Corporate Debtor but it fails to comply with its assurance in terms of the resolution plan, what step is to be taken has already been laid down in Sub-Section (3) of Section 33 of the I&B Code.
The expression ‘person aggrieved’ does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized - It is significant to point out that pre-occupation of the ‘I & B’ Code with ‘timely resolution of insolvency’ is an important factor. In so far as ‘Liquidation’ is concerned, it destroys the organizational capital etc. ‘I & B’ Code allows ‘Liquidation’ only on failure of ‘CIRP’ and it facilitates/encourages resolution in several manners.
This Bench approved the Resolution Plan submitted by Kerala Industrial Infrastructure Development Corporation (KINFRA), a Statutory authority of the Government of Kerala pursuant to the approval of the Resolution Plan by the COC with 92.72% voting rights - the claim of the applicant was also settled in accordance with the Resolution Plan on 19th March 2021 paying ₹ 12,87,926 within 45 days as provided under the Resolution Plan. The mere allegation that CoC has not constituted the Monitoring Committee and that the conduct of the first meeting of the purported Board would not hold water.
This Tribunal, taking note of the entire conspectus of the attendant facts and circumstances of the instant case in an encircling manner and also keeping in mind the plea taken by the ex- Resolution Professional that out of 145.60 Crores, 144.96 Crore has been disbursed to the stakeholders immediately and balance 0.64 Crore is pending in the accounts of Hindustan Newsprint Limited due to incorrect account details of certain claimants, returned amount due to dormant account details, for which the communication has been sent to claimants to the available Email. The ex-Resolution Professional to disburse the balance amount finding out the correct account details and complete the process without further delay.
Application dismissed.
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2021 (1) TMI 1230
Seeking approval of Resolution Plan - section 31 of IB Code and Regulation 39 (4) of The Insolvency and Bankruptcy Board of India (Insolvency Process of Corporate Persons) Regulations, 2016 - HELD THAT:- The perusal of the Resolution Plan shows that the Financial Creditor will get a sum of ₹ 10,00,000/- against the their total claimed amount of ₹ 12,44,9,127/-. The Operational Creditors would receive a sum of ₹ 4,28,000/- as against their total claimed of ₹ 8,56,85,662/- and provisions for statutory liabilities has been made to the tune of ₹ 1,07,800/- and Resolution Applicant also made the provisions of contingent liabilities of ₹ 1,00,000/-. There is no claim submitted by the workmen. Thus, in sum and substance, the Resolution Plan provides for settlement of claim of various stakeholders. It is also noted that the Resolution Plan provides the background of successful Resolution Applicant and its associates. It also provides the details of financial capabilities of the successful Resolution Applicant. The Resolution Plan also provides implementation of Resolution plan within 60 days from the date of approval of the plan by this Authority - the Resolution plan also provides for appointment of RP as the person in-charge to look after the implementation of Resolution Plan. The Resolution Plan has also addressed the issues which resulted into Insolvency of the Corporate Debtor and future business plan so as to such situation does not arise again.
Thus, the revised 'Resolution Plan' filed with the Application meets the requirements of Section 30(2) of I&B Code, 2016 and Regulations 37, 38, 38(1A) and 39 (4) of IBBI (CIRP) Regulations, 2016. The 'Resolution Plan' is also not in contravention of any of the provisions of Section 29A, affidavit under section 29A has also been filed by the Resolution Applicant. The Resolution Professional has also certified that the 'Resolution Plan' approved by the CoC does not contravene any of the provisions of the law for the time being in force. The Compliance Certificate is placed on record. The 'Resolution Plan' has been approved by the CoC with 100% voting share.
The Resolution Plan is approved - the approved 'Resolution Plan' shall become effective from the date of passing of this order - application allowed.
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2021 (1) TMI 1229
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - continuation of Status-Quo Order till the next date of hearing - possession of the immovable asset of the Corporate Debtor mortgaged to the Bank has been taken possession by resorting measures under Section 13(4) of the Act - HELD THAT:- The Adjudicating Authority has taken into consideration of taking possession by Appellant before expiry of 60 days. The possession having not been taken in accordance with law the title of the property still vests in Corporate Debtor, which need to be protected to safeguard the interests of Corporate Debtor as well as other Creditors.
The Order passed by the Adjudicating Authority on 31st December, 2021 indicates that the Status-Quo Order dated 30.09.2021 has been continued till the next date of hearing. We have been informed by the Learned Counsel for the parties that the matter both on I.A. 4516 of 2021 as well as the main CP (IB) No. 472/2021 has been fixed for 15th February, 2022. The Order dated 30.09.2021 is now continuing for last more than three months and now 15th February, 2022 is the next date fixed in the matter, we are of the view that at this stage it is not necessary for us to express any final opinion regarding the various issues raised by the parties regarding title and ownership of the immovable properties whether it is still in ownership of the Corporate Debtor or stand transferred to Yes Bank Limited. What is nature of claim of the Financial Creditor-Dewan Housing Finance Corporate Limited quo the immovable property which is also mortgaged to Yes Bank Limited, all these issues have to be considered and decided by the Adjudicating Authority finally.
Appeal disposed off.
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2021 (1) TMI 1227
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - pre-existing-dispute or not - HELD THAT:- The existence of dispute is evident from the letter dated 31.01.2019 by the Operational Creditor to the Corporate Debtor.
It is further pertinent to mention that the existence of dispute is evident from the letter dated 29.03.2019 issued by Operational Creditor whereby, the Operational Creditor had referred the dispute to the Ld. Arbitrator for outstanding payment of ₹ 6,49,94,661/- and proposed the name of Mr. Sanjiv Kumar, Additional District and Session Judge (Retd.) in pursuant to Arbitration & Conciliation Act. In pursuance of letter dated 29.03.2019 issued by the Operational Creditor, the Corporate Debtor by its letter dated 04.04.2019 had again informed about deteriorated quality of Crude Palm Oil of Edible Grade and asked the Operational Creditor to pay an amount of ₹ 50 crores towards losses incurred by the Corporate Debtor - The Sole Arbitrator, Mr. Sanjiv Kumar, Additional District and Session Judge (Retd.) after consideration of the disputes raised by both the parties, had passed an Arbitral Award dated 24.09.2019 whereby the Ld. Sole Arbitrator dismissed the Claim being premature and also dismissed the Counter Claim of the Corporate Debtor by recording that the same would be considered only after the Claimant (Operational Creditor herein) has failed to take all possible legal remedies to recover the Claim of the Respondent with the supplier.
It is clear that the dispute must exist before the receipt of demand notice. Be that as it may, on appraisal of the arguments advanced by the Ld. Counsels, it emerges that there were disputes existing prior to the issuance of the Demand Notice - since there is a pre-existing dispute between the parties, we have no option but to reject the prayer of the Operational Creditor to initiate proceedings under Section 9 of IBC, 2016.
Application dismissed.
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2021 (1) TMI 1223
Direction to Respondent No.1/Operational Creditor to repay with interest the money wrongfully received and retained under the three SWIFT remittances to be returned to the Bank Account of the Corporate Debtor along with applicable interest at the rate of 18% p.a. calculated from the date of receipt of payments till actually repaid - HELD THAT:- It is seen that as per the audited account as on 31st March, 2019 the dues payable to the Respondent No.1 (Operational Creditor) is ₹ 91,05,994/- and this fact was admitted by the applicant stating that the audited accounts have been finalized even before the admission of the Corporate Debtor under CIRP. This Tribunal also while admitting the aforesaid Application relied on the Audited Accounts and based on the same it was held that the amount payable to Respondent No.1 (Operational Creditor) is more than the threshold limit of one lakh rupees.
While admission of the matter, during arguments, the Corporate Debtor has not raised any of the points raised in this application, as the applicant was silent waiving the Corporate Debtor right to file an appeal, if the Corporate Debtor was really aggrieved by the aforesaid admission of the matter. Without taking recourse of the remedies available to them, now they have come up with this application to release them from the process of CIRP revoking the order of this Tribunal passed on 7/11/2019. The applicant in the guise of an application under Section 60(5) of the IB Code is trying to re-open an admitted matter which cannot be allowed. Since the matter has attained finality and the Resolution Professional has already filed an application for approval of the Resolution Plan, and that the claim put forward by the Operational Creditor through IA(IBC)/33/KOB/2021 has been dismissed by this Tribunal, it is too late to pass any orders in this matter.
Application dismissed.
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2021 (1) TMI 1220
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - respondent has taken a defence that the Director who has entered into an agreement with the applicant had obtained the amount without the approval of the Board of Director and without having special resolution passed by the board of Director - HELD THAT:- Mere plain reading of the provision shows that under this provision any person may inspect the documents, which are kept in the office of Registrar regarding the incorporation of the company, which includes the Article of Association and Memorandum of Association. 'The documents which a person is entitled to get from the office of Registrar u/s 399 of the Companies Act and if he fails to see and verify it prior to entering with a contract with the company then the company is not liable for that act, if it is done by the Director, because it comes under the doctrine of constructive ' notice. But the question is "does the doctrine of constructive notice allow the outsiders to have notice of internal affairs of the company", the answer is no, because doctrine of constructive notice is subject to exception i.e Indoor Management and that is the reason petitioner has taken this plea.
In view of Section 179(3) (d) the Board of Director of Company shall exercise its powers subject to the provision contained in the Act or in the memorandum or articles and one of the power which is referred in Section 179 (3)(d) of the Companies Act, 2013 is also to borrow the money, of course, in view of Section 180(1)(c) that is subject to special resolution passed by the Board of Directors and in view of Section 180(5) of the Companies Act, 2013 no debt incurred by the company in excess of the limit imposed by Clause C of Sub Section 1 shall be valid or effectual unless the lender proves that he advanced the loan in good faith without knowledge that the limit imposed by that clause had been exceeded but herein the case in hand, we notice that it is not the case of respondent that the debt incurred by the company is in excess of the limit imposed by Section 180(1) (c) of the Companies Act 2013 rather the claim of the respondent is that the Director who signed the loan agreement had not been authorized by the special resolution passed by the Board of Directors as required under Section 180 of the Companies Act, 2013, therefore, Section 180(5) of the Companies Act is not applicable.
The receiving of the amount has been not denied by the respondent and it is also admitted by the respondent that amount has not been paid because the director who entered into an agreement was not authorized by the special resolution as required under Section 180(1) of the Companies Act to borrow the loan and in view of Section 7(5) of the IBC the moment the Adjudicating Authority came to the conclusion that default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional then the Adjudicating Authority has no option but to admit the application filed under Section 7 of the IBC.
The applicant has succeeded to establish that there is a financial debt and Corporate Debtor is in default in making the payment of that financial debt, the application is complete - Application admitted - moratorium declared.
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