TMI Blog2018 (2) TMI 1355X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Applicant is eligible to file application under Section 10, there being a debt and default. The impugned order dated 20th June, 2017 cannot be upheld and is accordingly set aside. The case is remitted back to the Adjudicating Authority for admission of the application under Section 10, if the application is otherwise complete. - Company Appeal (AT)(Insolvency) NO. 107 of 2017 And Mumbai Bench, Mumbai In C.P. NO.1104/I&BP/NCLT/MAH/2017 - - - Dated:- 12-1-2018 - Mr. S.J. Mukhopadhaya And Mr. Bansi Lal Bhat, JJ. For The Appellant : Amit Vyas, Monish Panda and Ms. Deepti Bhardwaj, Advs. For The Respondent : V. Seshagiri, Anchit Tripathi, Ms. Anushka Sharma and Rachit Kumar, Advs. JUDGMENT Sudhansu Jyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that to avail the loan/credit facilities from the Banks, the Corporate Debtor has offered not only its immovable properties as securities, but also the personal guarantees of its Directors and others, mortgaging several immovable properties in favour of the Banks, apart from fixed deposits and hypothecation of the stock-in-trade. 4. At paragraph 6 of the impugned order while the Adjudicating Authority referred names of 10 Banks which formed the Joint Lender Forum of the Financial Creditors to whom the corporate debtors owe more than ₹ 428 crores, names of 12 individual personal guarantors have been mentioned therein. Apart from the same the securities offered by the corporate applicant has been noticed and recorded at paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arty to. It is not sufficient just to meet the requirements under sec. 10 of the Code which would automatically entitle the Corporate Debtor to initiate such proceedings. The Adjudicating Authority has to consider the merits of each case and see beyond what meets the eye, and only after due application of mind, consider the case on its merits. 6. Learned counsel appearing on behalf of the corporate applicant submitted that the unrelated facts cannot be looked into by the adjudicating authority while considering the application under Section 10 of I B Code. 7. However, according to learned counsel for the respondent, financial creditors proceeding under SARFAESI Act having initiated by financial creditor , the appellant preferred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as required under Section 10 and Form 6 and if the Corporate Applicant is otherwise not ineligible under Section 11, the Adjudicating Authority is bound to admit the application and cannot reject the application on any other ground. 23. Any fact unrelated or beyond the requirement under I B Code or Forms prescribed under Adjudicating Authority Rules (Form 6 in the present case) are not required to be stated or pleaded. Non-disclosure of any fact, unrelated to Section 10 and Form 6 cannot be termed to be suppression of facts or to hold that the Corporate Applicant has not come with clean hand except the application where the Corporate Applicant has not disclosed disqualification, if any, under Section 11. Non-disclosure of facts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal or liquidation order has been passed in respect of Corporate Debtor, no application under Section 10 can be filed by the Corporate Applicant in view of ineligibility under Section 11(d) of I B Code, as quoted below: 11. Persons not entitled to make application - The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:- (a) a corporate debtor undergoing a corporate insolvency resolution process; or (b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or (c) a corporate debtor or a financial creditor who has violated any of the terms ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
