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TMI Blog2018 (7) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... e company is Rs. 2,00,00,000/- (Two crores only) and the Paid-up share capital is Rs. 5,00,000/- (Five Lakhs only), respectively. 3. The precise case of the Petitioners is that the Corporate Debtor had entered into a sale/purchase MOU on 11-10-2013 with the Petitioner for sale/purchase of 3500 sq.fts. constructed space on the ground floor in Tower-A, Unit No.4, property No. 201 in Sector KP-V, Greater Noida, District Gautam Budh Nagar, U.P. The Petitioner disbursed total sale consideration of Rs. 3,03,73,754/- (Rupees Three Crores Three Lakhs Seventy Three Thousand Seven Hundred and Fifty four Only) under the MOU dated 11-10-2013. He opted for the Assured Returns plan under the said MOU. Accordingly the Corporate Debtor was to pay a monthly sum of Rs. 3,04,167/- (before TDS) to the Petitioner until 50 months or offer of possession whichever is later. The Debtor stopped making the payment of assured returns since April, 2016 and has committed default in the payment of the monthly assured returns till date. 4. In the case of Nikhil Mehta & Sons (HUF) & Ors v. AMR Infrastructures Ltd., Hon'ble NCLAT vide order dated 21-07-2017 rendered in Company Appeal (AT) Insolvency No. 07/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. He has declared that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. In addition, further necessary disclosure has been made by Mr. Alok Kumar Kuchhal as per the requirement of the IBBI Regulations. 8. In the Petition, the Financial Creditor has given the details of amount paid to M/s. Premia Projects Ltd. with the dates of disbursement and the repayment of the said debt was guaranteed by the Corporate Debtor under the Memorandum of Understanding dated 11-10-2013 which mentions fixed returns to be paid w.e.f. 16-04-2013 till 50 months or offer of possession whichever is later. A perusal of part IV of the petition has highlighted the following particulars of financial debt: PARTICULARS OF FINANCIAL DEBT 1. TOTAL AMOUNT OF DEBT GRANTED/DATE OF DISBURSEMENT (Annexure-A) A total sum of Rs. 3,03,73,754/- (Rupees three crores three lakhs seventy three thousand and seven hundred and fifty four only) was disbursed as under:- (a) Rs. 2,00,000/- by way of cheque dated 31-01-2013. (b) Rs. 50,00,000/- by way of D.D. dated 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved as assured return from the Respondents along with a letter dated 02-07-2015. 13. The details of the Payments adjusted against assured return which were payable by the Respondent and the receipts issued in respect of those payments have been given as under:- Assured returns adjusted as per MOU dated 11-10-2013 i Rs. 2,00,000/- assured return adjusted on 11.10.2013. ii Rs. 10,45,079/- assured return adjusted on 17-10-2013. iii Rs. 88,402/- assured return adjusted on 17-10-2013. iv Rs. 2,14,803/- assured return adjusted on 01-11-2013. v Rs. 2,15,365/- assured return adjusted on 01-12-2013. vi Rs. 2,15,365/- assured return adjusted on 01-01-2014. vii Rs. 2,15,365/- assured return adjusted on 01-02-2014. viii Rs. 2,15,365/- assured return adjusted on 01-03-2014. Ix Rs. 2,15,365/- assured return adjusted on 31-03-2014. x Rs. 2,36,920/- assured return adjusted on 01-05-2014. xi Rs. 2,36,920/- assured return adjusted on 01-06-2014. xii Rs. 2,36,920/- assured return adjusted on 01-07-2014. 14. As submitted by the Petitioner, the details of receiving the said assured return from the Respondents is as under:- ASSURED RETURNS RECEIVED / (a) Rs. 20,00,000 for his personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard learned counsel for the Financial Creditor and having perused the paper books with his able assistance we may first examine the provisions of Section 7(2) and Section 7(5) of IBC which read as under:- "Initiation of corporate insolvency resolution process by financial creditor. 7(1)....................... 7(2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed. 7(3) ....................... 7(4) ....................... 7(5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b)............................." 19. A conjoint reading of the aforesaid provision would show that form and manner of the application has to be the one as prescribed. It is evident from the record that the application has been filed on the proforma prescribed under Rule 4(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2016. 20. The Interim Resolution Professional shall perform all his functions religiously and strictly which are contemplated, inter alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code. He must follow best practices and principles of fairness which are to apply at various stages of Corporate Insolvency Resolution Process. His conduct should be above board & independent; and he should work with utmost integrity and honesty. It is further made clear that all the personnel connected with the Corporate Debtor, erstwhile directors, promoters or any other person associated with the Management of the Corporate Debtor are under legal obligation under Section 19 of the Code to extend every assistance and cooperation to the Interim Resolution Professional as may be required by him in managing the affairs of the Corporate Debtor. In case there is any violation by the ex-management or its ex-directors the Interim Resolution Professional would be at liberty to make appropriate application to this Tribunal with a prayer for passing an appropriate order. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtor' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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