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TMI Blog2019 (11) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... rigger the Corporate Insolvency Resolution Process in the matter of Durha Vitrak Private Limited-Corporate Debtor. 2. The Corporate Debtor-Durha Vitrak Private Limited is a company registered under the provisions of the Companies Act, 1956 and was incorporated on 1-8-1986. The identification number of the Corporate Debtor is U74140DL1986PTC024992 and its registered office is situated at Plot No. 20, Sector A-7, Narela, Delhi, North West DL-110040. 3. The Financial Creditor had initially proposed the name of Resolution Professional, Mr. Ashok Kumar Juneja to act as Interim Resolution Professional (for brevity 'IRP'). On account of his inability to act as IRP, the Financial Creditor filed an application being C.A. No. 520/C-III/ND/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Annexure 40. 5. The Respondent executed several documents for availing the aforesaid financial assistance from the Petitioner. True Copies of each one of those documents namely, Loan Agreement dated 7-3-2016, Undertaking Cum Indemnity, Demand Promissory Note, Letter of Continuity for Demand Promissory Note dated 7-3-2016 and Deed of Hypothecation dated 9-3-2016, Deeds of Guarantee dated 12-3-2016 have been placed on record [Annexure-3 to 5 (colly]. 6. The details of the security held by, or created for the benefit of 'financial creditor'-LIC Housing Finance Limited along with copies of declaration cum confirmation for creation of equitable mortgage dated 30-4-2016 & 11-5-2016 (Annexure-7 & 8) on the land and building given and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 19 01/19+02/19+03/19 1,04,00,000 (One Crore four lacs) On 24th March 2019 In the wake of aforesaid settlement three post-dated cheques (Annexure-28) as a security for the payment of the outstanding amount were given by the Corporate Debtor to the Petitioner. As per the settlement, the Respondent was required to make the first installment of Rs. 50,00,000/- on July 24, 2018 but no amount was credited on the aforesaid due dates. Afterwards on 6-8-2018 a sum of Rs. 34,00,000/- was received by the Petitioner through RTGS mode but did not receive the entire amount as per the settlement on July 24, 2018 nor any further amount due was received on subsequent dates. Thus, the Petitioner had no option but to present the aforesaid post dated che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here being any proof or supporting document in support of the same. 4. The parties have dispute and there exist a pre-existing dispute between them. The petitioner has initiated proceedings before the various courts and forums which are pending adjudication. 5. The calculations are wrong and false and the same has been done with the sole intention to create fictitious entries without the consent of the Respondent. 11. Having heard learned counsels for the parties at considerable length we find that settlement proposal dated 9-7-2018 (Annexure-27) for the repayment of the pending dues and regularization of the credit facility account was sent by the Corporate Debtor with its sign and seal to the Petitioner. The total amount payable show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eation of mortgage over the properties in order to secure the loan, execution of the loan agreement and further giving the demand promissory notes and issuance of cheques, it stands established that the amount claimed is due and payable. 13. We further find that the provisions of section 7 (2) and section 7 (5) of IBC have been complied with as discussed in detail in our order rendered in the case of ECL Finance Ltd. v. Digamber Buildcon (P.) Ltd. (IB- 1039(PB)/2018), dated 27-11-2018. 14. 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever be subject to adjustment by the Committee of Creditors. The amount must be accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor. 19. Directions are also issued to the Ex-Management/Auditors etc. to provide all the documents in their possession 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. 20. 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 Info ..... X X X X Extracts X X X X X X X X Extracts X X X X
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