TMI Blog2019 (7) TMI 1716X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed - The Code gets triggered the moment default is of rupees one lakh or more. It is thus evident that there is a debt which is more than 1 lakh and the corporate debtor has failed to pay the debt. It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application - the present application 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. In terms of Section 7 (5) (a) of the Code, the present application is admitted - Moratorium declared. - Company Petition No. (IB) 1014(PB)/2019 - - - Dated:- 31-7-2019 - M.M. Kumar, C.J. (President) And Santanu Kumar Mohapatra, Member (T) For the Appellant : Neha Lakhwara, CS For the Respondents : Siddharth Vaid and Soumya Saikumar, Advocates ORDER Santanu Kumar Mohapatra, Member (T) 1. Endless Services Pvt. Ltd. has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in the event of any default, the entire loan amount along with interest as stipulated therein shall immediately become due and payable, and the financial creditor shall have the right to recall the entire loan together with applicable interest. 7. It is also the case of the applicant that in order to secure the loan amount, the corporate debtor agreed to create security in favour of the financial creditor and furnish the title documents of its property. However, no formal security agreement could be executed in favour of the financial creditor creating security charge over the hospital property. Be that as it may, corporate debtor had furnished the four postdated cheques for the repayment of the principal as well as the interest amount. 8. As per the terms and conditions of the loan agreement the corporate was to repay the entire loan amount of ₹ 1 crore to the financial creditor after a period of 18 months. It was also the obligation of the corporate debtor to pay interest at monthly rests. 9. It is stated in the application that the corporate debtor paid interest only for first month after availing the loan amount of ₹ 1 crore and thereafter it never pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onent of outstanding principal and interest. In that view of the matter not only the present claim comes within the purview of 'Financial Debt' but also the applicant can clearly be termed as 'Financial Creditor' of the respondent corporate debtor so as to prefer the present application under Section 7 of the Code. 18. It is no longer res Integra that if there is a debt and default and the application under Section 7 of the Code is complete, Adjudicating Authority is bound to admit the application. 19. In the present case applicant financial creditor has placed on record its bank account statement maintained with Kotak Mohindra Bank, K. G. Marg New Delhi Branch to show that the loan amount of ₹ 1 Crore was disbursed to the respondent company on 31.07.2017. Respondent corporate debtor has not disputed the receipt of the said loan amount. 20. It has also not been disputed that the four postdated cheques issued by the respondent corporate debtor for repayment of the loan amount got dishonored with the bank memo endorsement 'Fund insufficient'. Even the cheque for ₹ 1.20 Crores on account of full and final settlement given by respondent duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made by Mr. Ajay Goyal as per the requirement of the IBBI Regulations. Accordingly, it is seen that the requirement of Section 7 (3) (b) of the Code has also been satisfied. 26. The application filed by the applicant financial creditor under sub-section 5 (a) of Section 7 of the code, has to be admitted on satisfaction that: I. Default has occurred. II. Application is complete, and III. No disciplinary proceeding against the proposed IRP is pending. 27. Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited V. Kirusa Software Private Limited reported in AIR 2017 SC 4532 at Para 19 has observed that: Once the adjudicating authority / Tribunal is satisfied as to the existence of the default and has ensured that the application is complete and no disciplinary proceedings are pending against the proposed resolution professional, it shall admit the application . 28. It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. 29. As a sequel to the above discussion we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. 35. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 36. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and Regulations. It is further made clear that all the personnel connected with the Corporate Debtor, its promoters or any other person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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