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TMI Blog2019 (3) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent Company M/s. Omway Bull estate Private Limited referred to as the corporate debtor. 2. The Respondent Company M/s. Omway Builestate Private Limited (CIN No. U45201 DL2004 PTC 129950) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 14.10.2004 having its registered office at 1513, Janta Flat, GTB Enclave, Nand Nagari Delhi - 110093. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the pray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and future interest. The Respondent Company has not paid its pending dues even after lapse of more than five years of passing of the decree. 5. The applicant has relied upon the following documents to prove the existence of its claim: * Copy of the loan agreement dated 20.01.2010. * Copy of judgment and decree dated 19.03.2013 passed by the Hon'ble High Court of Delhi. * Copy of order dated 17.01.2014 passed by the Hon'ble Supreme Court in SLP (Civil) CC 21469/2013. 6. It is claimed that as on 20.07.2018 the total outstanding amount including interest due to the respondent corporate debtor comes to Rs. 10,14,10,125/-. 7. The respondent corporate debtor has filed its reply on 26.10.2018. Rejoinder to the reply was filed by applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, section 238A has been added in the Code which provides as follows: "The provisions of the Limitation Act, 1963 shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may be." 14. It is true that Limitation Act, 1963 has been made applicable and the provisions of Article 136 provide for 12 years period to execution of decree or order of a Civil Court. The argument received by the counsel, for Respondent is wholly without substance. Moreover the decree was modified on 04.04.2016. We do not find any substance in the raised by the Respondent and reject the same. 15. Admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor. The corporate debtor had borrowed the loan against payment of interest as agreed between the parties. The loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover the debt claimed in the present application includes both the component of outstanding principal and interest. In that view of the matter not only the present claim comes within the purview of 'Financial Debt' but also the applicant can clearly be termed as 'Financial Creditor' so as to prefer the present application under Section 7 of the Code. 21. The application filed by the applicant financial creditor under sub-section 5(a) of Section 7 of the Code, has to be admitted on satisfaction that: i. Default h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. As a sequel to the above discussion and in terms of Section 7(5)(a) of the Code, the present application is admitted. 25. Mr. Lekhraj Bajaj, having registration number IBBI/IPA-002/IP-N00039/2017-18/10078 resident of 107, Agarwal Prestige Mall, adjoining to M2K Mall Pitampura, Delhi-110034 with email-id [email protected] is appointed as an Interim resolution Professional in respect of the corporate debtor. 26. In pursuance of Section 13(2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (3 days as prescribed by the IBBI Regulations) with regard to admission of this application under Section 7 of the Insolvency & Bankruptcy Code, 2016. 27. We also declare morato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a contract of guarantee to the corporate debtor in terms of Section 14(3)(b) of the Code. 29. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 & 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the 'Code', Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its 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 day-to-day affa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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