TMI Blog2019 (10) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... : Aakashi V. Shah and Natasha Dhruman Shah, Adv. ORDER Notwithstanding the above, the Registry of this Bench has pointed out some typographical errors which occurred in the daily proceedings dated 26.06.2019 of the present IB Petition. Hence, the case is taken up suo motu for the purpose of carrying necessary rectification/modification in the above referred proceedings. 2. By perusal of the proceedings dated 26.06.2019, it may be seen that due to inadvertence, it is noted as such the fresh consent letter of the new IRP namely Mr. Haresh Babulal Shah having registration no. IBBI/IPA-001/IP-P00378/2017-2018/10635 ..is received 3. It is matter of record that while the above stated IRP withdrew his consent to be considered for appointment of IRP in the present case. 4. Thereafter, the name of the new IRP, viz., Ms. Anjali Nirav Choksi (having registration no. IBBI/IPA-001/IP-P00820/2017-2018) has been proposed by the applicant, but such has not been reflected in the Court proceedings dated 26.06.2019 and the name of Mr. Haresh Babulal Shah is still reflecting in such proceedings (dated 26.06.2019), w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Navrangpura, Ahmedabad, Gujarat-380 006. 4. The nominal share capital and the paid up share capital of the corporate debtor and/or details of guarantee clause as per Memorandum of association (as applicable); ₹ 3,00,00,000/- divided into 30,00,000 Equity Shares of ₹ 10/- each ₹ 98,63,570/- divided into 9,86,357/- Equity Shares of ₹ 10/- each. 5. As per the petitioner-financial creditor, during the year 2011, she had advanced multiple credit facilities to the corporate debtor on various dates, aggregating to ₹ 6,55,00,000/-. Details of the said credit facilities are described in Annexure-A, which is annexed to the application. However, the corporate debtor had failed into repay the said credit facilities to the petitioner/financial creditor as per the terms and conditions of loan agreement executed. 6. The Financial Creditor has described all the requisite details of loan disbursed to the Corporate Debtor company as per the provisions of I B Code. In Part-IV of the application in prescribed Proforma under Rule-4 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould also be in a position to resolve their outstanding debt. 5. I, therefore, state that the corporate debtor has no objection if the present application is admitted by way of an order and this Hon'ble Tribunal is pleased to direct commencement of Corporate Insolvency Resolution Process of the Corporate Debtor, if this Hon'ble Tribunal find the present application to be in proper form and format and devoid of any defects as contemplated under the provisions of the Insolvency and Bankruptcy Code, 2016 and the Regulations framed thereunder. I beg to annex a copy of Board Resolution dated 19.10.2018 passed by the Board of Directors of the corporate debtor as Annexure-I to the present affidavit. 9. Further, pursuant to this Tribunal's order dated 29.11.2018, the corporate debtor company has placed on record its list of unsecured loan and creditors as on 01.12.2018. 10. By taking into consideration of the above stated admission of the debts liability of the corporate debtor company, we examined the relevant provisions of Section 7 of the I B Code and Rules applicable, which reads as under; 7. Initiation of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission of the application under sub-section (5). (7) The Adjudicating Authority shall communicate- (a) the order under clause (a) of sub-section (5) to the financial creditor and the corporate debtor; (b) the order under clause (b) of sub-section (5) to the financial creditor, within seven days of admission or rejection of such application, as the case may be. 11. In the light of the above stated statutory provisions and by perusal of the contents of the present IB Petition and the documents annexed therewith, the default of debts is well established which meets the requirement of Section 3(11) and (12) of the I Code to trigger the CIRP in respect of the Corporate Debtor company. The relevant provisions of Section 3(11) and 3(12) of the Code speaks as under; 3(11) debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt; 3(12) default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5 (21) means a claim in respect of provision of goods or services. 28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor- it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P00820/2017-2018/11382 under Section 13 (1) (c) of the Code. (ii) That the order of Moratorium under Section 14 of the Code shall have effect from 12.07.2019 till the completion of Corporate Insolvency Resolution Process or until this Bench approves the Resolution Plan under Sub-section (1) of Section 31 or passes an order for Liquidation of Corporate Debtor under Section 33 as, the case may be. (iii) That the Bench hereby prohibits the institution of suits or continuation of pending suit or proceedings against the corporate debtor including execution of any judgment, 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 SARFAESI Act, 2002; the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (iv) That the supply of essential ..... X X X X Extracts X X X X X X X X Extracts X X X X
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