TMI Blog2020 (7) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is complete in all respect and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been default in payment of the financial debt - Application admitted - moratorium declared. - Company Petition No. (IB)-712(PB)/2019 - - - Dated:- 3-3-2020 - B.S.V. Prasad Kumar, Actg. President And S.K. Mohapatra, Technical Member For the Petitioner : Amit Agrawal, Adv. For the Respondent : Krishnendu Datta, Adv. ORDER 1. The IBM India (P.) Ltd. has filed the instant application under section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity 'the Rules') with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent Company M/s. Global Infonet Distribution (P). Ltd., referred to as the corporate debtor. 2. Mr. Vikas Bhatnagar duly authorized on behalf of applicant has preferred the present application on behalf of the applicant for initiation of insolvency resolution process against the respondent under the Code. A c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable towards late payment fees @ 24% per annum, Accordingly, an amount of INR 69,74,807.61 accrued till September, 2016 towards the extension charges. Further, an amount of INR 17,57,515.98/-, also became due towards the interest on the late payment charges. 8. The applicant further stated that despite repeated requests by the Financial Creditor and assurance by the Corporate Debtor, the Corporate Debtor had time and again failed to adhere to such requests and defaulted in the payment of both the principal amount and the late payment fee. 9. Thereafter the Financial Creditor was constrained to approach this Hon'ble Tribunal vide application bearing No. CP. (IB)-06(PB)/2018 under section 7 of the Insolvency and Bankruptcy Code, 2016 against the said Corporate Debtor in relation to the Financial Debt. 10. However before pronouncement of the final order, the parties had entered into the consent terms dated July 20, 2018 and basis the settlement arrived, the Tribunal vide its order dated July 23, 2018, dismissed the application as withdrawn and granted liberty to the Financial Creditor to approach the Tribunal by way of a fresh note if the necessity arises. 11. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that due to the reason stated above the applicant cannot rely upon the Consent Terms. 17. In this regard the applicant in its written arguments filed on 10-2-2020 has submitted that the respondent itself has breached the terms of consent terms as the respondent never approached or responded to the applicant for settlement regarding the remaining payments. The applicant has also served a notice through its advocate dated 11-1-2020. The relevant portion of the notice dated 11-1-2020 has been reproduced below: 4. Further, as per clause 5(b) of the Consent Terms, on or before February 15, 2019, there was an obligation upon the parties to discuss and negotiate to agree upon, either a payment plan or one time settlement amount, as mutually agreed between the parties in relation to the outstanding amount INR 10,21,922.74 (after deduction of upfront payment of INR 1,00,00,000/-) along with certain extension charges amounting to INR 69,74,807.61 till September, 2016 and interest of INR 17,57,515.98. It was also agreed that subject to parties agreeing to the payment plan, Global Infonet was/is also obligated to handover post-dated cheques for the entire payment plan to IBM India o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or consent terms, whatever disputes that were in existence before execution of the consent terms, have to be treated as resolved by the Consent Terms subsequently arrived at. Therefore, in the present matter also the previous disputes between the parties shall be treated as resolved at the time of execution of consent terms dated 20-7-2018. 21. In relation to the breach of terms of the consent terms dated 20-7-2018, it is seen that the respondent intentionally has avoided the correspondences of the applicant and also failed to arrive at a consent payment plan/one time settlement before 5-2-2019, therefore, the respondent is now liable to make payment of the dues of applicant. 22. It is seen that the materials on record and the documents clearly depict that the loan was disbursed. Infact settlement was made between the parties for the claimed dues of applicant. Respondent company utilized and enjoyed the financial facility from time to time. The applicant has placed on record relevant documents in support of the claim. 23. It is reiterated that the respondent has not denied the fact that settlement was arrived between the parties and the respondent itself had settled al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant has filed the present application under section 7 of the Code in the requisite FORM-1 to initiate Corporate Insolvency Resolution Process against the respondent Corporate Debtor. Form-1 filed under section 7 of the Code read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 shows that the required information and other facts as prescribed have been furnished. The applicant has annexed to the application detail particulars of 'financial debt' including documents, records and evidence of default as required under sub-section 3(a) of Section 7 of the Code. On a bare perusal of the Form reveals that the same is complete in all respect and there is no infirmity in the same. 29. Sub-section (3)(b) of Section 7 mandates the financial creditor to furnish the name of an Interim Resolution Professional. In compliance thereof the applicant has proposed the name of Mr. Yogender Pal Singhal, for appointment as Interim Resolution Professional having registration number IBBI/IPA- 001/IP-P00492/2017-18/10880 resident of Rani Jhansi Road opp. Jhandewalan Mandir, New Delhi 110055 with email - id info@ypsinghalassociates.com. Mr. Yogender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Neeraj Bhatia to meet out the expenses to perform the functions assigned to him in accordance with Regulation 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the Financial Creditor. The said amount however be subject to adjustment towards Resolution Process cost as per applicable rules. 37. We also declare moratorium in terms of Section 14 of the Code. The necessary consequences of imposing the moratorium flows from the provisions of Section 14(1)(a), (b), (c) (d) of the Code. Thus, the following prohibitions are imposed: (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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