TMI Blog2017 (11) TMI 1686X X X X Extracts X X X X X X X X Extracts X X X X ..... - 8-11-2017 - V. P. Singh, Member And Jinan R.R., Member (JJ) For the Applicant/Financial Creditor: Mr. Kiran Sharma, Pr. C.S. For the Respondent/Corporate Debtor: Ms. Debaleena Ganguly, Advocate, Mr. Amit Kumar Muhuri, Advocate ORDER Per Jinan R.R., Member (J) Mr. Ketan Mehta (Financial Creditor) filed this petition under section 7 (1) of the IBC, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 for corporate insolvency resolution process against the respondent M/s. ABNM Restaurant Private Ltd. (Corporate Debtor). Brief facts as construed from the perusal of the following records are the following:- The corporate debtor has availed various credit facilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 to 31.03.2016 is marked as ( Annexure-I; Exhibit-G); P.46-48). A copy of demand notice dated 18 th April 2017 via email to the corporate debtor demanding payment of the dues is marked and annexed as (Annexure-I; Exhibit-H, P.49). A copy of notice to the corporate debtor is marked as (Annexure I; Exhibit I). The petitioner further submits that the consent of the Interim Resolution Professional obtained by the petitioner and is produced in the petition. The written communication of the same under Form-2 has been duly marked and annexed as ( Annexure-II , P.51). Also, by power of attorney the petitioner has appointed the said Company secretary, Mr. Kiran Sharma to appear on the behalf of the Financial Creditor, copy of the said Memora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Form was complete and that there is default in payment. What are the documents to be produced in an application to be filed under section 7 of I B, Code is discussed in detail by the Hon ble NCALT in Neelkanth Township and Construction Pvt. Ltd. Vs. Urban Infrastructure Trustees Limited in Company Appeal (AT) (Insolvency) No. 44 of 2017? It is good to read para 16 of the said judgment. It read as follows: - 16. 'Financial Creditor' along with the application required to be furnished information and other facts as prescribed under sub-section (3) of Section 7. Where the Adjudicating Authority is satisfied that a default has occurred and the application under sub-section (2) is complete, and there are no disciplinary proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the requirement for initiating a corporate insolvency proceeding s against the respondent is compiled by the petitioner in this case At this juncture learned Counsel for the respondent cited M/s Jeevan Credit Leasing Pvt. Ltd. V. M/s King Airways Limited (Company application No. (I.B) 13/PB/2017) a judgment delivered by Hon'ble NCLT, Principal Bench for highlighting an argument that for want of constitutional document as provided under section 5 (4) of I B, Code this petition is liable to be dismissed. It is significant to note that the statement of account not at all challenged by the learned counsel for the respondent. Learned counsel for the respondent also submits that due to inability to pay the debt the respondent could mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a fine exceeding up to Rs. One Crore for fraudulent and malicious initiation of proceedings and hence the parties and professionals are required to be vigilant, careful and bonafide in approaching this Tribunal under IBC. The fact in the case in hand being different than the above referred case and petitioner being succeeded in proving that the respondent is a corporate debtor come under the definition of Section 3(8) of I B, Code and that the petition is otherwise complete we find the petition filed under section 7 of I B Code is perfectly maintainable. Bear in in mind the principle laid down in the NCALT judgment referred above, we are satisfied that petitioner succeeded in proving the compliance of all requirement on its side and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the corporate debtor including execution of any judgement, decree or order in any court of law, Tribunal arbitration panel or other authority; transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; 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 and the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (ii). That the supply of essential goods or services to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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