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TMI Blog2018 (5) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... 5312PB1987PLCOO7497. Its registered office is at Gurdaspur (Punjab) and therefore, the matter falls within the territorial jurisdiction of this Tribunal. 3. The authorized share capital of the corporate debtor is Rs.2.00 crore and the issued, subscribed and paid up share capital is Rs.1,44,59,730/-. The Certificate of Incorporation of the corporate debtor is at Enclosure-3, (Page No 27 to 65A) with which the Memorandum and Articles of Association of the company have also been annexed. The instant petition has been filed by the corporate-debtor through Mr. Jatinder Mohan Julka, Managing Director, who has been authorized to file this petition under Section 10 of the 'Code' vide resolution of Board of Directors dated 15.12.2018 (Enclosure-5) authorising him to file the petition before NCLT, Chandigarh and to do all the acts necessary for progress of the case. The contents of the application are supported by the affidavit of Mr. Jatinder Mohan Julka as at Page No.17 . There are four shareholders of the company, the details of which are given at Page No 210 and the Board of Directors comprises three Directors; namely Mr. Jatinder Mohan, Mr.Palwinder Singh & Mr. Dilbagh Singh. 4. Punja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the name of corporate debtor. Value of land & building has been described as Rs.5,76,96,154/-. The other property mortgaged is Sortex Plant Rs.1,89,62,941/-; Rice Mill, Sela Plant & Boiler worth Rs.1,99,00,000/-. The total amount of securities is mentioned as Rs.9,65,59,068/-. Details of calculation is mentioned as Enclosure-17 at page 338 of the paper book. The charge of these securities were created on 31.03.2012. 9. Apart from the aforesaid securities, the corporate debtor had also hypothecated stocks and Book Debts on the same date and value of stocks is mentioned as Rs.6,01,526/- and value of Book Debts as Rs.87,19,009.83 for which documents are annexed at Enclosure-13 at page 193 of the paper book. 10. Admittedly, Punjab National Bank declared the account of the corporate debtor as NPA on 09.10.2017 due to the default in making the payment of the instalments/interest/principle amount. The Bank-financial creditor also started proceedings against the corporate debtor and issued notice dated 24.10.2017 under Section 13 (2) of the SARFAESI Act at page 129 of the paper book. The total amount in default as on 30.09.2017 is stated to be Rs.5,84,60,965/- but it is contended by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the answering financial creditor and as such took the entire amount refunded in his own name. When the Bank made inquiries from Emaar MGF, then Emaar MGF filed a police complaint against aforesaid Jatinder Mohan Julka. Copy of the Police complaint dated 08.09.2017 is annexed at Annexure R-1. 14. When the matter was listed on 06.03.2018, learned counsel for the Bank submitted that the only objection to the admission of this petition was on account of default of the housing loan obtained by Mr. Jatinder Mohan Julka. The learned counsel submitted that the balance amount of Housing Loan would be deposited by 03.04.2018 and therefore, the matter was adjourned for today. Learned counsel for petitioner has handed over certificate dated 04.04.2018 issued by the Punjab National Bank to the effect that the Housing Loan has been cleared and the outstanding amount is Nil in the said account. Learned counsel for the Bank, on instructions, has not disputed this contention. The certificate issued by the Punjab National Bank is taken on record. 15. We have heard learned counsel for the parties and examined ther ecord of the case with their able assistance. 16. Hon'ble Appellate Tribunal in M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before the date of making of an application under the said Chapter; or that the corporate debtor is one in respect of whom a liquidation order has already been made can be a ground to reject the application under Section 10 on the ground of suppression of fact/not come with clean hand." "25. Similarly, if any action has been taken by a 'Financial Creditor' under Section 13(4) of the SARFAESI Act, 2002 against the Corporate Debtor or a suit is pending against Corporate Debtor under Section 19 of DRT Act, 1993 before a Debt Recovery Tribunal or appeal pending before the Debt Recovery Appellate Tribunal cannot be a ground to reject an application under Section 10, if the application is complete." 17. We have perused the instant application filed in Form No.6 in terms of Section 10 of the Code and it is found complete in all respects. Section 10 of the Code reads as under : - "10. (1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority. (2) The application under sub-section (1) shall be filed in such form, containing such particulars and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Part-I of the Code to mean "non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be." 20. As provided in Rule 7(1) of the Rules, the Corporate Applicant has to make an application under Section 10 of the 'Code' in Form 6 accompanied with documents and records required therein and as specified in IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Since we have already dealt in detail in the opening paragraphs supra of this order relating to information furnished, we are not repeating the same for sake of brevity, as the essential particulars as contemplated, have been provided by the Applicant. 21. The corporate debtor has filed financial statements for the years 2015- 16 and 2016-17 and also the provisional statement for the period from 01.04.2017 to 10.01.2018 and these are at Enclosure-13 (page 191). All these statements are attested by Chartered Accountant and Managing Director and Director of the corporate debtor. It is represented by the learned counsel for the corporate debtor that as per the financial statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are satisfied that the instant application warrants to be admitted to prevent further erosion of capital and to safeguard the assets of the Applicant Company/Corporate Debtor. 25. In view of the above, the instant petition is admitted. While admitting the application the moratorium is declared for prohibiting all of the following as provided in Section 14(1) of the Code:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority: (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 26. It is further directed that the su ..... 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