TMI Blog2021 (1) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the Financial Creditor that the Corporate Debtor has not paid the dues of the Financial Creditor and also the Learned Counsel for the Financial Creditor submitted that even in the affidavit filed by the Corporate Debtor, the outstanding debt has been admitted which is owed to the Financial Creditor. There is a debt and default on the part of the Corporate Debtor and the Corporate Debtor is unable to repay its dues to the Financial Creditor. It has also been consistently held by the Hon'ble Supreme Court both in M/S. INNOVENTIVE INDUSTRIES LTD. VERSUS ICICI BANK ANR. [ 2017 (9) TMI 58 - SUPREME COURT] as well as MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT] after going through the Scheme of I B Code, 2016 in depth in relation to an Application under Section 7 filed by a Financial Creditor as compared to the one filed under Section 9 by an Operational Creditor, in relation to a Section 7 Application where there is an existence of a 'financial debt' and when there is a default, this Tribunal is bound to admit the Application and as a consequence trigger the Corporate Insolvency Resoluti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as described below: Term Loan I - ₹ 2000 lakh: a. Sanction Letter dated 19.08.2009 issued by the Financial Creditor to Corporate Debtor for term loan of ₹ 2000 lakh. b. Board Resolution dated 19.08.2009 of Corporate Debtor accepting terms and condition of sanction of term loan of ₹ 2000 lakh. c. Loan Agreement dated 14.12.2009 along with General Conditions. d. Deed of Personal Guarantee dated 11.12.2009 by Dr. Palani G Periasamy Mrs. Visalakshi Periasamy. e. Deed of Hypothecation dated 14.12.2009. f. Agreement for Pledge of Shares dated 23.04.2010. g. Declaration and Undertakings in the matter of mortgage by deposit of title deeds by way of constructive delivery dated 22.01.2020. h. Memorandum recorded by Indian Bank, Chennai in the matter of mortgage by deposit of title deeds by way of constructive delivery dated 22.01.2020. Funded Interest Term Loan II (TFCI Loan ₹ 4,11,56,317): a. Sanction letter dated 17.01.2018 issued by the Financial Creditor to Corporate Debtor for term loan of ₹ 2000 lakh. b. Board Resolution dated 09.02.2018 of the Corporate Debtor accepting terms and condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of the above land to one M/s. Casagrande Builders Private Limited Chennai at ₹ 100 Crores, however the sale did not materialize. 7. The Learned Counsel for the Financial Creditor submitted that, thereafter, the Corporate Debtor was negotiating with the alternate buyer viz. Interups, Inc. USA for the sale of land and clearance of dues to the Financial Creditor and to the other banks, however no payment has been received and as such the account of the Corporate Debtor was declared as NPA by the Financial Creditor on 30.09.2019. 8. The Learned Counsel for the Financial Creditor submitted that the term loan of the Financial Creditor was secured by creating a First Pari passu charge on all the fixed assets both present and future of hotel at Coimbatore including hypothecation of all movables and equitable mortgage of hotel land admeasuring 5.67 acre and buildings thereon. Also a first pari passu charge by way of equitable mortgage of housing quarters situated at Coimbatore. Apart from the above, it was submitted that the Financial Creditor was also having charge over the hotels at Chennai and has also obtained personal guarantees from the promoters of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present application is allowed, irreparable loss would be incurred to the Corporate Debtor and under the said circumstances, prayed for dismissal of the Application. 12. Heard the Counsel for both the parties and perused the documents placed on record. It is a fact borne on record that the Corporate Debtor is unable to repay the dues to the Financial Creditor and as such on the garb of OTS settlement the Corporate Debtor wanted to gain time to settle of the dues to the Financial Creditor. Further, a perusal of the record of proceedings dated 04.02.2020, also shows that the Corporate Debtor was putting in efforts to settle of the dues of the Financial Creditor and upon such representation being made, the Corporate Debtor was granted time to settle the matter and the matter was finally posted to 02.03.2020 for reporting settlement or to proceed with the matter. Thus, when the matter was taken up for enquiry on 02.03.2020, it has been brought to the notice of this Tribunal by the Counsel for the Financial Creditor that the Corporate Debtor has not paid the dues of the Financial Creditor and also the Learned Counsel for the Financial Creditor submitted that even in the affidavit fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall stand superseded as a consequence of the initiation of the CIR Process in relation to the Corporate Debtor in terms of the provisions of I B Code, 2016. 16. As a consequence of the Application being admitted in terms of Section 7 of the Code, moratorium as envisaged under provisions of Section 14(1) and as extracted hereunder shall follow in relation to the Corporate Debtor; (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 property including any action under the Securitization and Reconstruction of Financial 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. 17. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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