TMI Blog2018 (2) TMI 2046X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as Financial Creditor ) under Section 7 of the Insolvency and Bankruptcy Code, 2016 r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against M/s. Meka Dredging Company Private Limited (hereinafter referred to as Corporate Debtor ). The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP) under the Insolvency and Bankruptcy Code, 2016 (I B Code). 2. The Financial Creditor has claimed the principal amount of ₹ 19,60,00,000/- plus agreed interest which comes to ₹ 22,74,42,271/- as on 09.11.2016. The basis of the Application are that the Financial Creditor has provided loan facility to the Corporate Debtor vide Loan Agreement dated 09.06.2010. The copy of the loan agreement is placed at pages 39 to 56 of the typed set filed with the Application. 3. Initially, the Loan Agreement was entered into between the Financial Creditor and Corporate Debtor with the condition that EMI of ₹ 1,03,83,500/- for 21 months starting from 15.11.2010 will be paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Creditor as per the schedule given in the undertaking. Subsequently, the Corporate Debtor has paid the last instalment to the tune of ₹ 65 Lakhs as on 31.03.2016, as reflects from the document placed at page 283 of the original typed filed by the Respondent with the counter. Thereafter, no payments have been made by the Corporate Debtor to the Financial Creditor. 8. The Corporate Debtor has filed the counter on 04.01.2018, wherein it has been claimed that the due payments have been made by the Corporate Debtor to the Financial Creditor and it is not liable to pay the alleged dues, Heard the Counsels for the Financial Creditor and Corporate Debtor and perused the record. 9. The Counsel for the Financial Creditor during the course of arguments has supported the contents of the Application along with record placed on file. However, in reply, the Counsel for the Corporate Debtor stated that there is dispute as to the amount claimed by the Financial Creditor. The basis of the dispute as per the submissions of the Counsel for the Corporate Debtor is that the Financial Creditor has been charging exorbitant interest i.e., 36% p.a., whereas the agreed rate of interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his arguments, the Counsel for the Corporate Debtor would like to refer to an order that came to be passed by the Division Bench of NCLT Chennai Bench dated 25.07.2017. But, the facts and circumstances involved in that matter are distinguishable from the facts involved in the case on hand. Therefore, the said order cannot be made applicable to this case. 13. Further, the Counsel for the Corporate Debtor has referred to the Order that came to be passed by the Hon ble NCLAT on 31.03.2017 in the matter of M/s. Deep Roll- Tech Limited Vs. M/s. R.L. Steel Energy Ltd., wherein under para 9, their Lordships are of the view that the Petitioner is well within its rights to have it executed the decree obtained from the Civil Courts before appropriate Civil Courts. However, in this matter, the Financial Creditor is not relying upon any decree passed by the Civil Court. Therefore, the authority referred to by the Counsel for the Corporate Debtor cannot be relied upon in the facts and.circumstances of the case. 14. The Counsel for the Financial Creditor rebutted the arguments of the Counsel for the Corporate Debtor by making reference ruling of the Hon ble NCLT given in Annapurna Inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d matter, the Hon ble Supreme Court has considered the provisions of the SARFAESI Act, and the Arbitration and Conciliation Act, 1996. In this case, there does not appear repugnancy or inconsistency between the I B, Code, 2016 and Arbitration and Conciliation Act, 1996, as both are operating independently. Therefore, the submissions of the Counsel for the Corporate Debtor stands rejected. 17. In this regard, the Counsel for the Financial Creditor has also referred to the ruling that has been given by Hon ble Supreme Court of India in M/S. Innoventive Industries Ltd. vs. ICICI Bank Anr., wherein while dealing with Civil Appeal Nos. 8337- 8338/2017, his Lordship Hon 'ble Justice R.F. Nariman, under para 27 of the Order laid down that for the meaning of debt , we have to go to Section 3(11), which in turn tells us that a debt means a liability of obligation in respect of a claim and for the meaning of claim , we have to go back to Section 3(3) which defines claim to mean a right to payment even if it is disputed. The Hon ble Justice further elaborated the same under para 30 of the judgement by observing that, in the case of a corporate debtor who commits a default of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 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. 21. The supply of essential goods or services of the Corporate Debtor shall not be terminated or suspended or interrupted during moratorium period. The provisions of Sub-section (1) of Section 14 shall not apply to such transactions, as notified by the Central Government. 22. The IRP shall comply with the provisions of Sections 13 (2), 15, 17 18 of the Code. The Directors of the Corporate Debtor, its promoters or any person associated with the Management of the Corporate Debtor are/ is directed to extend all assistance and cooperation to the IRP as stipulated under Section 19, so that he could discharge his functions under Section 20 of the I B Code, 2016. 23. The Financial Creditor and the Registry are directed to send the copy of this Order to IRP, so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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