TMI Blog2021 (8) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... above Company Petition filed by the Financial Creditor basing on a decree is maintainable and is liable to be admitted - petition admitted - moratorium declared. - C. P. No. 3073/IBC/MB/2019 - - - Dated:- 10-8-2021 - Hon ble Shri H.V. Subba Rao, Member (Judicial) And Hon ble Shri Chandra Bhan Singh, Member (Technical) For the Applicant : Mr. Manoj Kumar Mishra, Advocate For the Respondent : Mr. S. K. Jain a/w Yahya Batatawal ORDER Per : Shri H.V. Subba Rao, Member (Judicial) 1. This Company petition is filed by Gannon Dunkerley Co. Ltd. (hereinafter called Financial Creditor ) seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Sangeeta Aviation Services Private Limited (hereinafter called Corporate Debtor ) alleging that the Corporate debtor committed default in making payment to the Financial Creditor. This petition has been filed by invoking the provisions of Section 7 Insolvency and Bankruptcy Code, 2016 (hereinafter called Code ) read with Rule 4 of Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. The present petition is filed before this Adjudicating Authority on the ground that the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct for Insolvency Professionals as set out in the IBBI (Insolvency Professionals) Regulations, 2016. c. Declaration given by the Proposed IRP is unsigned. d. The attachment mentioned as Form 5 instead of Form-1. iii. In part IV of Form 1, the total amount of debt granted and date of disbursement are given. The applicant has included interest amounting to ₹ 27,05,753/- based on order dated 09.01.2019 passed by Hon ble Bombay High Court in Summary Suit No. 714 of 2018. However, the Applicant claims that it is a Financial Creditor. Hence, it has to satisfy necessary ingredients as prescribed in IBC, 2016 i.e. the Applicant is a financial Creditor under Section 5(7) and the amount advanced by him is a Financial Debt under Section 5(8). However the applicant s claim is based on a decree passed by the Hon ble Bombay High Court. Whereas the Hon ble Bombay High Court has allowed interest at the rate of 12% per annum as an appropriate compensation which is normally allowed in Recovery Civil Suits. Thus, it is abundantly clear that there was no stipulation for payment of interest on the amount advanced by the Applicant to the Corporate Debtor Company. Hence, in absence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of Debt under Section 3(11) and the amount so advanced is a Financial Debt under Section 5(8) of the IBC, 2016, the occurrence of any Default under Section 3(12) does not arise. Findings 1. In the light of above pleadings, the following issues falls for consideration: i. Whether the present Company Petition filed by Financial Creditor on the basis of a decree passed by the Hon ble Bombay High Court against the Corporate Debtor is maintainable? ii. Whether the defence taken by the Corporate Debtor is legally sustainable in law? 2. Heard both sides and perused the record. The learned counsel appearing for the Financial Creditor submitted that the Financial Creditor has advanced an amount of ₹ 1 crore to the Corporate Debtor in the month of March and May 2017 respectively and the Corporate Debtor in receipt of the said amount executed two bills of exchange dated 22.03.2017 and 31.05.2017. 3. Counsel for the Financial Creditor further submitted that subsequently the Corporate Debtor failed to Honour the liability for which the Financial Creditor was constrained to file a suit in the Hon ble Bombay High Court and obtained a decree and judgement dated 09.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of M/S Orator Marketing Pvt. Ltd. vs M/S Samtex Desinz Pvt. Ltd. held that stipulation of payment of interest is not a condition precedent to qualify as a financial debt. 7. All the above defences raised by the Corporate Debtor are not legally sustainable and are liable to be rejected. This Bench is of the considered opinion that the above Company Petition filed by the Financial Creditor basing on a decree is maintainable and is liable to be admitted. The petitioner has also suggested the name of proposed Interim Resolution Professional in part-3 of the Petition along with his consent letter in Form-2. Thus, the present Company Petition satisfies all the necessary requirement for admission. Accordingly, the above Company Petition is admitted by passing the following: ORDER a. The above Company Petition No. (IB) -3073(MB)/2019 is hereby allowed and initiation of Corporate Insolvency Resolution Process (CIRP) is ordered against Sangeeta Aviation Service Pvt. Ltd. b. This Bench hereby appoints Mr. Modilal Dhanraj Pamecha Insolvency Professional, Registration No: IBBI/IPA-001/IP-P01231/2018-19/12127 as the Interim Resolution Professional to carry out the functi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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