TMI Blog2021 (2) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... e records it is found that from time to time the corporate debtor has made payments towards the outstanding loan and thus acknowledged the debt. That, the application filed by the financial creditor is well within limitation. That, the documents filed along with the application is sufficient to prove that there exists financial debt. The Adjudicating Authority is of the considered view that there is a debt due to financial creditor and there is default on the part of the corporate debtor - the application is found to be complete in all respect. Hence it does not warrant any rejection or dismissal. That, the records available shows that the applicant had sanctioned term loans to the respondent company, to be repaid within the stipulated period as per the terms and conditions agreed between the parties. Records available shows that the respondent has not cared to reply the notice issued by the applicant - In the instant application, from the material placed on record by the Applicant, this Authority is satisfied that the application is complete in all respect and the Corporate Debtor committed default in paying the financial debt to the Applicant and the respondent company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-177), the applicant had sanctioned working capital loan of ₹ 4,00,00,000/-(Rupees four crores only) to the respondent. That, the said term loan was required to be repaid within a period of 24 months along with interest @ 19.35% per annum on monthly basis. That, to secure the loan, financial debtor placed on record of the petition the deed of personal guarantee duly executed by Mr. Paresh T. Parekh and Mr. Manish G. Patel and a demand promissory note. 5. It is further submitted by the applicant that, after executing facility agreement dated 27th May, 2015, another working capital term loan of ₹ 1,50,00,000/- (Rupees one crore and fifty lakhs only) was sanctioned to the respondent and the respondent had provided additional security by pledging 2,00,000 equity shares of the respondent company of ₹ 10/- each representing 10% of the fully paid shares of the company held by Mr. Paresh T. Parekh, in favour of the petitioner by transferring the right, title, interest and ownership through a duly executed power of attorney. 6. It is further submitted by the applicant that having received the payment of first term loan of ₹ 4.00 crores which was scheduled to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand promissory note, drawdown request and bank statement 178-192 9 Application form dated 27-4-2015, term sheet dated 11-5-2015 and Board resolution dated 18-5-2015 193-201 10 Facility agreement dated 27-5-2015 202-262 11 Power of attorney dated 27-5-2015 executed by Mr. Paresh T. Parekh 263-273 12 Communication for closure of loan account of ₹ 4.00 crores 274-274B 13 Application form, facility agreement dated 17-6-2016 275-395 14 Legal notice sent by petitioner under section 138 of Negotiable Instruments Act, 1881 396-402 15 Complaint dated 28-7-2017 filed before the Metropolitan Magistrate, Mumbai 403-409 16 Notice sent by petitioner on various dates under the provisions of I B Code 410-421 17 Copy of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17-6-2016 Outstanding 21,06,371/- 13. On perusal of the records it is found that the respondent itself has admitted having taken a term loan of ₹ 4.00 crores and having repaid the entire loan as per the schedule agreed upon between the parties. The respondent has also admitted (para 6 of affidavit in reply) having taken additional loan of ₹ 2.50 crores subsequently. Thus, the respondent has admitted the debt. The only objection raised by the respondent is that in absence of repayment schedule, penal interest/charges or interest calculation are without any basis and/or justification are disputed between the parties. On perusal of records it is found that no document is produced by the respondent fortifying such claim. On the other hand, the petitioner has put on record (pages 25-30 of rebuttal documents) the repayment schedule duly sealed/signed and acknowledged/accepted by the respondent. That, the application is filed on 9th July, 2019. On perusal of the records it is found that from time to time the corporate debtor has made payments towards the outstanding loan and thus acknowledged the debt. That, the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in part I, particulars of the corporate debtor in part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or sped post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor in payment of the 'financial debt'. 20. There is no dispute in the case that the petitioner is the financial creditor. The application is also furnished in the prescribed form - 1 of the Rules and the prescribed fee has also been paid. Along with the application, the applicant proposed the name of the Resolution Professional namely Mr. Manish Shah. The Adjudicating Authority hereby appoint Mr. Manish Shah, A/502, Krishna Palace, Thakur Complex, Kandivali (East), Mumbai 400 001 (Mobile 9821071894) (Email ID mdshah0211@gmail.com) having registration No. IBBI/IPA-001/IP-P00094/2017-18/10194 to act as an interim resolution professional. Form 2 of the proposed interim resolution professional has been annexed and placed at page No. 423 of the application where declaration is made that no disciplinary proceeding is pending against him with the Board or Indian Institute of Insolvency Professionals of ICAI. 21. In the aforesaid background and as also discussed above, the application under section 7 (2) of the IB Code is complete in all respects and there is debt due to the financial Creditor and there is default on the part of the corporate debtor . Hence, there is no a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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