TMI Blog2020 (1) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... ication is complete and perusing the documents on records it goes beyond doubt that the Applicant is entitled to claim its dues, from the Corporate Debtor, who is liable to pay, being the guarantor of the principal borrower. The default in payment of the financial debt is established beyond doubt. The present application is admitted - moratorium declared. - Company Petition (IB) No. 1458/PB/2019 - - - Dated:- 20-9-2019 - Dr. Deepti Mukesh, Judicial Member And S.K. Mohapatra, Technical Member U.K. Chaudhary, Sr. Adv., Ms. Manisha Chaudhary and Mansumyer Singh, Advs. for the Applicant. Vidit Gupta and Prakash Pandey, Advs. for the Respondent. JUDGEMENT Dr. Deepti Mukesh, The Present Application is filed under section 7 of Insolvency and Bankruptcy Code, 2016 (for brevity 'IBC, 2016') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') by Mr. Rajesh Kumar through Power of Attorney, dated 18.05.2019, on behalf of its Sole Proprietor Ms. Sumedha Kanodia of the company M/s. Pashupati Jewellers. (for brevity 'Applicant') wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther finance which will be then utilized to repay the applicant. Believing the assurances of the principal borrower, the applicant handedover the original title deed and other documents to the principal borrower. Thereafter the principal borrower or guarantor neither repaid the due amount nor handedover the original documents to the applicant. 5. It is submitted by the Applicant that upon expiry of the stipulated term of repayment of one year, as per the loan agreement, the applicant approached the principal borrower and sought repayment of the said loan amount. A legal notice, dated 28.05.2018, was sent to the corporate debtor demanding payment of the unpaid loan amount. The corporate debtor replied to the said notice vide letter, dated 05.06.2018, raising issue of genuinenity of said resolution through which the corporate guarantee was signed and blanket denial of the due amount as claimed by the applicant. It is further submitted that the corporate debtor filed a civil suit bearing C.S (SCJ) No. 1958/18 seeking declaration and injunction qua the board resolution dated 03.04.2017 based on which the corporate guarantee agreement was signed on behalf of the corporate deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clearly been acknowledged and acted upon by the parties. It is submitted that apart from the corporate guarantee tendered to the applicant, the corporate debtor created a valid charge on the Radisson property in favour of the applicant, which is evident from the board resolution passed on 03.04.2017, the extract of which is reproduced: RESOLVED THAT Mr. Balkaran Singh Bhullar be and is hereby authorized individually to create a first pari passu charge over the property of the company situated at Anchor No. 9, First Floor, Plot No. 4, Dwarka City Centre, Sector-13, Dwarka, New Delhi-110019, in favour of the bank to secure the amount of loan as sanctioned by bank. The applicant has relied upon the master data of the corporate debtor and copy of which is annexed and reflects the charge created with respect to the said property against which it is open. 12. The Applicant has submitted that according to Section 5 (8) (i) of the I B Code, the debt is financial debt and is reproduced hereunder: '5(8) Financial Debt means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anied by documents and records required therein. Form-1 is a detailed form in 5 parts, which requires particulars. of the applicant in Part-I, particulars. of the corporate debtor in Part II, particulars. of the proposed interim resolution professional in Part-III, particulars. of the financial debt in Part-IV and documents, records and evidence of default in Part-V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered address of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. Thus it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The mome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed in Form 2 of Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rule, 2016 in relation to specifically the corporate debtor and the applicant herein and make disclosures as required under IBBI (insolvency Resolution Process for Corporate Persons) Regulations, 2016, within a period of one week from the date of this order. 20. We direct the Financial Creditor to deposit a sum of ₹ 2 lac with the Interim Resolution Professional, namely Mr. Ashok Kriplani to meet out the expense to perform the functions assigned to him in accordance with regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within one week from the date of receipt of this order by the Financial Creditor. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Financial Creditor. 21. As a consequence of the application being admitted in terms of Section 7(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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