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TMI Blog2021 (8) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... s that originally the present Application was filed in the name of M/s. Reliance AIF Management Company Limited as a Financial Creditor, who has subsequently undergone a change of name and accordingly moved an IA/72/CHE/2021 before this Tribunal seeking for amending the cause title in the present Application viz. IBA/149/2020. It is seen from the proceedings that this Tribunal vide its order dated 15.04.2021 has allowed the said Application and directed the Applicant to amend the cause title of both the Applicant. Accordingly, the cause title was amended and the matter was taken up for hearing and final disposal on 29.07.2021. 3. Part-I of the Application sets out details about the Financial Creditor from which, it is evident that the Financial Creditor is a Company incorporated under the Companies Act, 1956. Part-II of the Application gives all the particulars of the Corporate Debtor from which it is evident that the Corporate Debtor is a Private Limited Company with CIN:U45201TN2004PTC052266 which was incorporated on 05.01.2004 and the Registered Office of the Corporate Debtor as per the Application is stated to be situated at No. 9, 1st Floor, Bishop Wallers Avenue (East), Myla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Financial Creditor submitted that the Corporate Debtor was engaged in the business of real estate and developments of properties and the Corporate Debtor had approached the Applicants for financial assistance to repay the existing indebtedness incurred by it and fund the construction and development of the projects - GVSPL Raksha and GVSPL Green Part, which were being developed by the Corporate Debtor. In pursuance of the same, it was submitted that the Corporate Debtor had mortgaged 31 residential flats in the project known as GVSPL Raksha along with receivables of 3 Units already sold and 12 residential flats in the property known as GVSPL Green Park in favour of the Applicant. 8. The Learned Counsel for the Financial Creditor submitted that, in order to secure the repayment of the aforesaid monies, the Corporate Debtor created the following security in favour of the Applicant; a) First and exclusive charge on the underlying freehold lands and development rights on the "Project Properties" from the date of execution of Mortgage Cum Trust Deed dated 01.08.2016 and Unsold Units thereon (without possession of land/superstructure, undivided share in the land with possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with the provisions of the Code. 11. In relation to the Corporate Debtor, it is seen that only written submissions have been filed by the Respondent stating that the name of the Applicant has been wrongly mentioned in the Application. Further, it is stated in the written submissions that on 03.03.2020, the Debenture Trustee has invoked the personal guarantees of all the guarantors by serving the Demand Notice to all the guarantors and has also filed an Application to initiate the Insolvency Resolution Process against the Personal Guarantors and that the Debenture Trustee alone is entitled to file an Application under Section 7 of IBC, 2016 and hence sought for the dismissal of the present Application. 12. Heard the submissions made by the Learned Counsel for the parties and perused the records. Before we proceed to merits of the present case, it is necessary to refer to the definition of the term 'financial debt' as envisaged under sub-section 8 of Section 5 of IBC, 2016. which is as follows:- (8) "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that they not disputed the debt nor default. In the circumstances there is a clear evidence in the case of the existence of 'financial debt' and the 'default' of such financial debt which is payable by the Corporate Debtor to the Financial Creditor. Under the said circumstances, this Tribunal is left with no other option but to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. 15. Thus taking into consideration the facts and circumstances of the case as well as the position of Law, we are of the view that this Application filed by the Financial Creditor is required to be admitted under Section 7(5) of the IBC, 2016 16. The Financial Creditor has proposed the name of one S. KRISHNAN, having Registration Number [IBBI/IPA-002/IP-N00784/2018-19/12433] as Interim Resolution Professional (IRP) and a written communication in the format prescribed under Form 2 of the Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016 has been filed by the proposed IRP who is appointed as the IRP to take forward the process of Corporate insolvency Resolution of the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod. (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the Corporate Debtor and mange the operations of such Corporate Debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such Corporate Debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified. (3) The provisions of sub-section (1) shall not apply to (a) such transactions, agreements or other arrangement as may be notified by the Central Government in consultation with any financial sector regulator or any other authority; (b) a surety in a contract of guarantee to a corporate debtor. 19. The duration of the period of moratorium shall be as provided in Section 14(4) of the Code and for ready reference reproduced as follows: (4) The order of moratorium shall have effect from the date of such order till the completion of the Corporate Insolvency Resolution Process: Provided that where at any time during the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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