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TMI Blog2020 (2) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... y (Application to Adjudicating Authority) Rules, 2016 for initiation of Corporate Insolvency Resolution Process (CIRP) of M/s. Globalite Industries Pvt. Ltd. (for brevity Corporate Debtor or 'CD'). 2.The transaction leading to filing of the present Application as reflected in the application is stated to be as under: (a) The FC vide facility letter dated 09.05.2017 bearing reference no. DEL_000307_1, extended trade finance facility to the tune of Rs. 4,00,00,000/- to M/s. Globalite Retail Pvt. Ltd. (GRPL), Principal Borrower. (b) There after a factoring agreement dated 12.05.2017 was executed between the FC and the Principal Borrower inter alia agreeing to the terms and conditions governing the aforesaid facility including time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Guarantee dated 17.05.2017 executed between the Petitioner and Respondent. (d) Funds in use Statement. (e) Demand Notice dated 31.08.2018 along with the postal/courier receipts along with tracking reports. (f) Demand notice dated 21.01.2019. (g) Reply Notice dated 21.01.2019. 4. The CD filed a reply on 10.06.2019 as follows: (a) The FC has not mentioned about the tripartite arrangement between the FC and the third parties to the present proceedings i.e. GRPL, which is also the subsidiary of the CD and Flipkart India Private Limited. (b) The interse transaction is disputed and is subject to a court proceeding in a civil suit bearing number CS/290/2019 filed by the GRPL and CD against the FC before Patiala House Court, D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r showing the pending invoices as disputed as on 30.04.2019. 5 . A rejoinder was filed by the FC on 22.07.2019 stating, (a) That in the matters in respect of which the power has been conferred on this Hon'ble Tribunal, the jurisdiction of the civil court is completely barred. The civil suit instituted by GRPL before Patiala house court is barred by Section 430 of the Companies Act 2013, thus the said suit is non-maintainable. (b) The FC further states that it extended finance facilities from time-to-time to the Principal Borrower on the invoices raised by the Principal Borrower on their debtor i.e. Flipkart, against which the facilities were extended. The funds disbursed have been depicted in the Funds in Use statement from the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 stipulates that the FC shall have the right to recourse against the GRPL in respect of each receivable remaining unpaid after the recourse date and the FC shall at any time on demand be entitled to recover the amount prepaid against the receivables. (h) After exercising recourse if the principal borrower i.e. GRPL fails to repay the due amount under the factoring agreement, the corporate guarantee shall be liable to repay the said amount as per the terms of the corporate guarantee dated 17.05.2017. (i) The FC further adds that the CD has clearly admitted the dues and liabilities and has nowhere in their pleadings or in arguments at all, disputed or denied such claims. (j) Thus, it is an admitted position that the debt is due and pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an IRP if Application is admitted. Further, it is also evident from the said Form 2 as filed by the IRP signed under his hand that he is not a related party to the CD and that he is eligible to be appointed as an independent director on the Board of the CD. Certificate of registration of the IRP as issued by the Insolvency and Bankruptcy Board of India (IBBI) and self-attested has also been enclosed along with the Application by the proposed IRP and taking into consideration all the above, this Tribunal finds that this is a fit case to be admitted in terms of Section 7 of IBC and thereby initiate CIRP as against the CD with the following consequences: a. Mr. K.V. Sivaraman, having Registration number: IBBI/IPA-001/IP-P00900/2017-2018/11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided in Section 14(4) of IBC, 2016 and for ready reference reproduced as follows:- (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of CD under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. e. The Board of Directors of the CD shall stand suspended on and from this day as envisaged under Section 17 of the Code. f. In terms of Section 7(7) (a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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