TMI Blog2019 (12) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- has been paid back on 13th April 2016 and 16th April 2016 itself, and as on date, no payment is due to the Financial Creditor under the said Agreement - It appears that in compliance with the order of the Adjudicating Authority dated 29th November 2018 the Corporate Debtor filed an Affidavit along with Bank certificate. But in reply no evidence was submitted to prove that the outstanding amount is due and payable. It is clear that document which was already rejected by the Adjudicating Authority, has been made the basis for passing the Order of Admission, which is not permissible under law - it is clear that finding of the Adjudicating Authority that a sum of ₹ 18,86,00,000/- was again disbursed to the Corporate Debtor by the Financial Creditor which is still due and payable is erroneous, without any basis and un-sustainable. In effect, order (s) passed by Ld. Adjudicating Authority appointing Interim Resolution Professional , declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action taken by the resolution Professional , including the advertisement published in the newspaper ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penal charges and other charges with the understanding that for one year the Corporate Debtor is not liable to pay the instalment. Accordingly, it was agreed between the parties that first six months there would be moratorium of interest and balance six months interest shall be added to the loan amount. After adding the interest portion of one year (inclusive of moratorium of six months) in loan amount of ₹ 35,66,61,986/-, the total outstanding amount became ₹ 38,39,00,000/- which was financed in the present two loan accounts, and the instalment for the 1st loan account was due to be paid on 22nd March, 2017 and for the 2nd loan account was due to be paid on 22nd June, 2017. 4. The Corporate Debtor contends that on the date of filing of the petition, there was no default as contemplated in Section 7 of the Insolvency and Bankruptcy Code 2016. The Corporate Debtor /Respondent further contends that the petition is pre-mature, and filed after the suppression of facts. The alleged amount is not due and payable at the time of filing of the petition. 5. The Adjudicating Authority admitted the petition on the ground that the Corporate Debtor in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in Form 1. 9. That the Appellant further contended that the Adjudicating Authority in the impugned order had placed reliance on the Supplementary Affidavit filed by the Respondent with dairy No. 3737 dated 6th June 2018, whereas the Adjudicating Authority already rejected the said affidavit on 11th July 2018. 10. The Appellant further contends that the impugned order has been passed on averments, which do not find mention in Form 1, and the Adjudicating Authority has presumed the debt on account of previous litigation. The Appellant has also stated that the impugned order has been passed by the Adjudicating Authority without providing any opportunity to the Corporate Debtor to file an objection, which is against the principle of natural justice. 11. On perusal of the record, it is clear that Respondent has not filed any document to prove the contents of part 4 of Form 1. The applicant has mentioned that the amount of ₹ 18,86,00,000/- was disbursed on 1st April 2016. Whereas, in the Colum, about the total amount disbursed and debt granted and Date of Form 1, it is specifically stated by the Applicant / Respondent that total amount of ₹ 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te debtor filed its Affidavit, which is also annexed with the appeal, reiterating that amount disbursed under the Loan Account dated 1st April, 2016, was paid back in two tranches on 13th April 2016 and 16th April 2016 to the UTI Bank in the name of the Applicant / Respondent. The Corporate Debtor has also stated in the Affidavit that this amount has not been paid towards any previous outstanding. The Corporate Debtor / Applicant has also annexed the copy of the certificate of Bank statements of YES Bank evidencing RTGS transfer of ₹ 17 crores on 13th April, 2016 and ₹ 1,86,00,000/- on 16th April, 2016 in the Account of M/s Wianxx Impex Ltd., the Financial Creditor. 17. It appears that in compliance with the order of the Adjudicating Authority dated 29th November 2018 the Corporate Debtor filed an Affidavit along with Bank certificate. But in reply no evidence was submitted to prove that the outstanding amount is due and payable. 18. It is also important to mention that on perusal of the order sheet dated 11th July 2018 it's evident that the Adjudicating Authority has rejected the Supplementary Affidavit dated 6th June 2018 which was filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 18,86,00,000/- was again disbursed to the Corporate Debtor by the Financial Creditor which is still due and payable is erroneous, without any basis and un-sustainable. 22. In effect, order (s) passed by Ld. Adjudicating Authority appointing Interim Resolution Professional , declaring moratorium, freezing of account and all other order (s) passed by 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 application preferred by the 1st Respondent under Section 7 of the I B Code is dismissed. The Adjudicating Authority will now close the proceeding. The 2nd Respondent Company is released from all the rigour of proceedings and is allowed to function independently through its Board of Directors from immediate effect. Interim Resolution Professional / Resolution Professional will hand over the management and records of the Corporate Debtor . The Adjudicating Authority will fix the fee of Interim Resolution Professional for the period he has functioned whi ..... 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