TMI Blog2019 (4) TMI 1853X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Corporate Insolvency Resolution Process against the Corporate Debtor before Adjudicating Authority when default has occurred - The Financial Creditor proved that there is 'financial debt' due against the Corporate Debtor and the Corporate Debtor committed 'default' in paying financial debt. Application admitted. - CP (IB) NO. 1202/KB/2018 - - - Dated:- 25-4-2019 - M.B. GOSAVI, JUDICIAL MEMBER For the Appellant : Ms. Nupur Choudhuri, Pr. CS For the Respondent : Shamnhu Nath Ray, Adv. ORDER 1. The Baidyabati Sheoraphuli Co-operative Bank Ltd.- the Financial Creditor filed this application under section 7 of Insolvency and Bankruptcy Code, 2016 against M/s. Debi Fabtech Pvt. Ltd. - the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for consideration before Hon'ble High Court. 3. The Financial Creditor filed this proceeding to start CIRP of the Corporate Debtor because Corporate Debtor committed default in paying financial debt. 4. The notice of this application is served on the Corporate Debtor. They appeared through one Mr. Seshnath Singh. He filed affidavit-in-reply, dated 11.01.2019. The Corporate Debtor contended that they have filed Debitech Fabtech (supra) before Hon'ble High Court at Calcutta against the Bank challenging the maintainability of the proceeding under 13(12) of SARFAESI Act, 2002. It is still pending. Hon'ble High Court issued order of injunction restraining the Bank from taking any action under SARFAESI Act, 2002. This fact s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for Corporate Debtor submitted that the Co-operative Bank cannot file proceeding even under the Insolvency Bankruptcy Code, 2016. The Special Officer cannot initiate any proceeding on behalf of the Bank because he is appointed only to hold elections. The appointment of Special Officer is also subject to challenge before Hon'ble High Court at Calcutta in Debitech Fabtech (supra). Hon'ble High Court restrained the Bank from taking any step against the Corporate Debtor under SARFAESI Act, 2002. This application is not maintainable. 7. At the outset, it is noted that the Corporated Debtor did not dispute two facts that it has received loan from Financial Creditor/Bank and there is default in paying loan amount. Since it is applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss against the Corporate Debtor before Adjudicating Authority when default has occurred. The I B Code does not make any difference while defining whether Nationalised Bank, Scheduled Bank, Co-operative Bank, any individual, any NBFC or any other institution. Issue pending before Hon'ble High Court at Calcutta is altogether different. Hence, on that ground, this application cannot be rejected. 10. It is submitted at bar that Special Officer cannot initiate any proceeding on behalf of the Bank . However, in this case, the notification under which the Special Officer was appointed as Administrator of the Bank is produced on record. By that notification, the Special Officer is appointed by the Government of West Bengal to manage affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd., is hereby admitted. (ii) I declare a moratorium and public announcement in accordance with Sections 13 and 15 of the IBC, 2016. (iii) Moratorium is declared for the purposes referred to in section 14 of the Insolvency Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of sub-section (1) of Section 15 of Insolvency Bankruptcy Code, 2016, shall be made immediately. (iv) Moratorium under Section 14 of the Insolvency Bankruptcy Code, 2016, prohibits the following: (a) The institution of suits or continuation of pending suits or proceedings a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cease to have effect from the date of such approval or liquidation order, as the case maybe. (ix) Necessary public announcement as per Section 15 of the IBC, 2016, maybe made. (x) Mr. Animesh Mukhopadhyay residing at 25/1A/1, Sundicon Enclave, Kolkata-700047, having Registration No. IBBI/IPA-001/IP-P00124/2017-2018/10266 and e-mail I.D. animesh_fca@yahoo.co.in. is appointed as Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan. (xi) The Financial Creditor to pay sum of ₹ 50,000/- (Rupees Fifty Thousand Only) to IRP as advance fees as per Regulation 33(2) of IBBI (Insolvency Resolution Process for Corporate Persons) Regulation 2016, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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