TMI Blog2020 (2) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... er a reading of section 7 of the Code along with Rule 4(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the application under sub-section (2) of section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him. Petition admitted - moratorium declared in terms of section 14 of the Code. - CP (IB) No.197/CHD/2019 - - - Dated:- 27-11-2019 - Chief Justice M.M. Kumar, President And Pradeep R. Sethi, Technical Member P.B.A. Srinivasan and Parth Tandon, Advs. for the Petitioner. Deepak Agrawal, Adv. for the Respondent. ORDER 1. Notice of this petition was issued on 29.07.2019. In response there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited. The Learned Single Judge, after referring to the self-same provisions of the Code and subordinate legislation made thereunder, held as follows:- 93. The fact that post notice winding up petitions continue to be governed by the Companies Act, 1956, only means - that to those proceedings it will be the Companies Act, 1956 which will apply. It does not, however, mean that if, in a post-notice winding up petition a new proceeding is filed under IBC, and where orders are passed by NCLT, including under Section 14 of IBC, the consequences provided for under IBC will not apply to post notice proceeding, whatever their stage may be. ** ** ** 98. Furthermore, this transitional provision cannot in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Liquidator is appointed, the provisions of the IBC would continue to apply to such companies and moratorium under Section 14 can be imposed. In Para 20, it has clarified that the law declared by the judgment of the Bombay High Court in Jotun India (P.) Ltd. v. PSL Ltd. case (supra) is approved by the Supreme Court. 4. The principles of law laid down by the Hon'ble Supreme Court in Forech India Ltd. case (supra) would not detain us from considering the matter on merit. The Official Liquidator has not argued nor it is possible to do so that the Corporate Debtor-Company in liquidation is in a position to pay the dues of the Financial Creditor-Petitioner. According to the averments made in the petition the various debts were grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs as and when required by the banks. A Revival Letter was executed by the Corporate Debtor in favour of the Financial Creditor on 14.12.2012. On 30.11.2015 a letter was written by the Corporate Debtor to the Financial Creditor acknowledging that for the purpose of Section 18 of the Limitation Act, 1963 and any like limitation law in order to preclude any question of limitation law, the Corporate Debtor was liable to the Financial Creditor for the payment of all outstanding with interest costs, charges and expenses and other monies due and payable (Annexure A-82). A copy of the Revival letter dated 30.11.2015 was also executed by the Corporate Debtor in favour of the Financial Creditor (Annexure A-83). The Consortium Leader- Union Bank of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied with the aforesaid issue has been discussed in detail in the order dated 27-11-2018 rendered in the case of ECL Finance Ltd. v. Digamber Buildcon (P.) Ltd. (IB-1039(PB)/2018). 7. After a reading of section 7 of the Code along with Rule 4(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the application under sub-section (2) of section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him. 8. As a sequel to the above discussion, this petition is admitted and Mr. Desh Deepak is appointed as an Interim Resolution Professional. 9. In pursuance of section 13(2) of the Code, we direct that Interim Insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossession and furnish every information in their knowledge as required under Section 19 of the Code to the Interim Resolution Professional within a period of one week from today otherwise coercive steps to follow. 13. Before parting we must notice the complaint made against Financial Creditor in the form of discrepancies in the statement of account. We cannot in summary proceedings determine the amount due. This function is required to be performed by the Information Utility which is not yet fully functional. Therefore, Resolution Professional may ask the ex-promoter/director of the Corporate Debtor for any such correction if need be and act accordingly by placing it before the Financial Creditor as it is only fair to do so. 14. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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