TMI Blog2018 (11) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... terim Resolution Professional and the Registrar of Companies, NCR, New Delhi at the earliest but not later than seven days from today. The Registrar of Companies shall update his website by updating the status of ‘Corporate Debtor’ and specific mention regarding admission of this petition must be notified to the public at large. - C.P. NO. (IB)-339(PB)/2018 - - - Dated:- 4-10-2018 - MR M. M. KUMAR, PRESIDENT AND MR S.K. MOHAPATRA, MEMBER (T) For The Petitioner : Mr. J.K. Chaudhary And Ms. Karishma Singh, Advocates For The Respondent : Mr. Aniruddha Deshmukh, Advocate JUDGMENT M.M. KUMAR, PRESIDENT - The Financial Creditor -Arete Service Private Limited has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) with a prayer to trigger the Corporate Insolvency Resolution Process in the matter of M/s. Soma Network Software Engineering Private Limited. It was initially incorporated on 12.04.1990 with the name and styled as Highway Services Private Limited and subsequently changed to its present one i.e. Arete Services Private Limited vide fresh certificate of Incorporation dated 27.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Bridge Loan Agreement (Annexure A-4). 6. A promissory note dated 27.02.2010 was executed by the Corporate Debtor in favour of the Financial Creditor for securing the aforesaid loan. The promissory note was payable on demand at any time after 05.09.2010. In the light of the terms and conditions stated in the aforesaid loan agreement it was also settled between the parties that an additional late fee of 2% of the due amount was payable by the Corporate Debtor if there was failure to pay the due amount. A copy of the promissory note dated 27.02.2010 has been placed on record (Annexure A-5). 7. Pursuant to the aforesaid, the Financial Creditor disbursed the amount of ₹ 5,00,00,000/- on 05.03.2010 through RTGS from its account maintained with Axis Bank at Vapi. A copy of the bank account statement evidencing the transaction has been placed on record (Annexure A-6). 8. The Corporate Debtor, in order to liquidate its liability, issued three cheques each for ₹ 5 crores each along with three cheques towards interest on 01.08.2010, 01.03.2011 15.10.2011 respectively, from its account maintained with Bank of America. However, the request was made, every time aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been detailed. According to the averments made by the Financial Creditor-Arete Services Private Limited the aforesaid facility availed by the Corporate Debtor are overdue and total amount in default on the day of filing the present application is ₹ 9,41,51,289 (Rupees Nine Crores Forty One Lakhs Fifty One Thousand Two Hundred and Eighty Nine). 12. After service of notice when the matter came up for consideration on 06.06.2018 learned counsel for the respondent sought time to file reply. We granted two weeks time for filing reply and ordered listing of the matter on 10.07.2018. However, again time was sought on 10.07.2018 and we had granted one last opportunity to file reply and fixed the matter on 31.07.2018. On 31.07.2017 we had saddled the respondent with cost of ₹ 20000/- on account of non-filing of reply, further granted a week time for the said purpose and ordered for listing the matter on 28.08.2018. On 28.08.2018 the position remained the same, however, in the interest of justice, we had again granted one week time to the respondent for filing reply subject to payment of ₹ 20,000/- as cost. In the said order we had further made it clear that if the rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) .. 18. 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 of the Code. We are satisfied that a default amounting to lacs of rupees has occurred within the meaning of Section 4 of the Code and the application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects. 19. As a sequel to the above discussion, this petition is admitted and Mr. Alok Chandra Singh, G-10, Express Apartments, Sector 4, Vaishali, Ghaziabad, Uttar Pradesh-201010, email id -alok@alokchandra.com, Registration No. IBBI/IPA-002/IP-N00381/2017-18/11124 is appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 committed by the ex-management or any tainted/illegal transaction by ex-directors or anyone else the Interim Resolution Professional/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/Resolution Professional shall be under a duty to protect and preserve the value of the property of the Corporate Debtor as a part of its obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code. 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, we grant one-week time to the respondent to file reply which shall be subject to payment of a further cost of ₹ 20,000/- in addition to cost of ₹ 20,000/- already imposed. We make it clear that if the reply is not filed within one week and/or cost is not paid then the defence of the respondent shall be deemed to be struck off and no reply shall be taken on record. Rejoinder, if any, be filed within one week thereafter. List for arguments on 26.09.2018. The aforesaid details concerning the conduct of the Corporate Debtor-Respondent would reveal that a design effort has been made to impede the insolvency proceedings by seeking time over and over again for filing reply. The leniency shown by the Bench has been misused to the hilt. It was therefore, in these circumstances that the order dated 28.08.2018 was passed whereby direction was issued that in case reply was not filed then the defence of the respondent was to be struck off and no reply was to be taken on record, and, inspite of said specific direction no reply has been filed. We are constrained to observe that in some of the cases the Corporate Debtor-Respondent deliberately delayed the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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