TMI Blog2018 (8) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... freezing of account, and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action taken by the ‘Resolution Professional’, including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The ‘Corporate Debtor’ (company) is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect. - Company Appeal (AT) (Insolvency) No. 36 of 2018 - - - Dated:- 18-7-2018 - Mr. S.J. Mukhopadhaya, Chairperson And Mr. Bansi Lal Bhat, Member(Judicial) For The Appellant : Mr. Balaji Srinivasan and Ms. Garima Jain, Advocates For The Respondent : Mr. Nikhil Nayyar and Mr. Divyanshu Rai, Advocates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Mr. Kesava, Shareholder and Director of Maxworth Realty India- (Corporate Debtor) has challenged the order dated 5th January, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench, whereby and where under the application preferred by the Respondents under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime has the payment been made to me in my HUF when I have advanced the loan in my individual capacity. 5. I state that in my individual capacity, had advanced an amount of ₹ 50,00,000/-(Rupees fifty Lakhs Only) to the 3rd Respondent as Loan Agreement dated 19.08.2014. It was agreed that the 3rd Respondent would repay the loan as per the repayment schedule agreed under the said Loan Agreement dated 19.08.2014 along with interest @ 18% per annum. It was the understanding between the 3rd Respondent and I, that the interest would be calculated on the reducing balance method, based on the timelines agreed under the repayment schedule in the Loan Agreement dated 19.08.2014 and that the entire interest amount would be payable in advance. It was further agreed that the entire loan would be repaid on or before 28.06.2015. A copy of the Loan Agreement dated 19.08.2014 is produced herewith as Annexure R19 . I further state that as a security for the aforementioned loan, the 3rd Respondent had mortgaged the Flats bearing No. A-201, A-203 and A-404, along with three covered car parking, in the apartment complex known as MAX SPOORTY , constructed on the residentially converted la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient funds and the cheque was returned to the 3rd Respondent and the said amount is still outstanding. The sum total of the payments made to the HUF and to Manisha A.Samat clearly shows that there is a default and that the 3rd Respondent Company owed a sum of ₹ 15,00,000/- (Rupees Fifteen Lakhs Only) (principal) to both the HUF as well as Manisha A.Samat. 6. The appellant has disputed the aforesaid stand taken by the respondents and brought to the notice of this Appellate Tribunal the following facts: - 4. It is submitted that Ajay Samat, Manisha Samat and Ajay G.Samat(HUF) herein have entered into a total of eight Agreements whereby amounts have been lent to Respondent No. 3 Company. It would be pertinent to note that some agreements have been entered into individually by Manisha Samat; Ajay Samat; Ajay Samat (HUF). Similarly there are some Agreements wherein amounts have been lent collectively by the aforesaid parties. Further there are some Agreements whereby loan amount has been extended by the aforesaid parties with a third person, namely Geeta Khubani. It would be pertinent to note all the Agreements entered were essentially entered at the behest of Ajay S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hindra Bank 5,000000 6. 10.11.2014 RTGS ICICI Bank 7,700,000 TOTAL RECEIVED 36,600,00 Amount loaned by Manisha Samat SL. No. Date Cheque No. Bank Name Amount 1. 12.12.2013 000044 Kotak Mahindra Bank 4,500,00 2. 17.07.2014 000137 Kotak Mahindra Bank 5,000,000 TOTAL RECEIVED 9,500,000 Amount loaned by Ajay Gopaldas Samat-HUF SL. No. Date Cheque No. Bank Name Amount 1. 17.07.2014 00067 Kotak Mahindra Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 10. Therefore, Adjudicating Authority whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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