TMI Blog2020 (11) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said to be a parallel proceedings since the Application under Section 7 of IBC, 2016 is filed to bring about a Resolution for the Corporate Debtor, on the other hand the proceedings under SARFAESI Act, 2002 is for recovery of the amount which is due and payable to the Financial Creditor. Existence of debt and dispute or not - amount of default involved - HELD THAT:- 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 is also seen that the present Application has been filed before this Tribunal on 17.06.2020 and as such the Notification issued by the Central Government in this regard by increasing threshold limit from ₹ 1 Lakh to ₹ 1 Crore would not apply to the facts and circumstances of the present case, as the amount claimed to be in default is already more than ₹ 1 Crore. It is also noted that the Central government by way of an amendment inserted in Section 10A of I B Code, 2016 wherein the default in respect of the dues arising from the period 25.03.2020 till 25.09.2020, (now extended upto 25.12.2020) has been excluded and as such in the present case f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) | Memorandum Confirming Deposit of Title Deeds dated 28.09.2015. (iv) Notice issued by the Financial Creditor under Section 13(2) of the SARFAESI Act, 2002 dated 01.02.2017. (v) Statement of Outstanding. (vi) Statement of Accounts 5. It is submitted by the Learned Counsel for the Financial Creditor that the Financial Creditor and the Corporate Debtor entered into a Loan Agreement dated 30.06.2015, wherein the Financial Creditor sanctioned a sum of ₹ 3,78,00,000/- (Rupees Three Crores and Seventy Eight Lakhs Only) to the Corporate Debtor and as per the Loan Agreement, the Corporate Debtor is obliged to pay a sum of ₹ 5,86,908/- (Rupees Five Lakhs Eighty Six Thousand Nine hundred and Eight Only) per month for a period of 120 months and the rate of interest was fixed at 14% p.a. 6. In pursuance of the same, the Financial Creditor has executed a Deed of Guarantee dated 28.05.2015 wherein the Corporate Debtor along with one M/s. Call Express Construction India (P) Limited stood as a Guarantor to the loan disbursed by the Financial Creditor. Further, the Corporate Debtor has also executed a Memorandum of Deposit of Title Deeds in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timated value of the property is ₹ 5,05,89,202/- and as such since the value of the property is more than the actual debt claimed by the Financial Creditor, the same should be set off against the outstanding loan. 11. It was also submitted by the Ld. Counsel for the Corporate Debtor that as on date of the application there is no Financial Debt outstanding from the Corporate Debtor as defined under Section 5(8) of IBC, 2016 since the Financial Creditor has already taken possession of the property of the Secured assets as early as on 04.04.2018 and the said property is under their possession. It was also submitted that the Financial Creditor has no right to invoke the provisions of IBC, 2016 after more than a period of one year after having taken possession to recover a home loan for which the secured assets has already been taken over by the Financial Creditor. Hence, it was prayed by the Corporate Debtor to dismiss the present Application. 12. Heard both sides and perused the records and pleadings before this Tribunal. 13. Prima facie it is the contention of the Ld. Counsel for the Corporate Debtor that since the Financial Creditor has initiated recovery p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Bankruptcy law and other laws. 49. As per Section 238 of the Insolvency and Bankruptcy Code, 2016, provisions of the Code shall have the effect, notwithstanding anything inconsistent therewith, contained in any other law, for the time being in force or any instrument, has effect, by virtue of such power. As per sub-Section (4) of Section 60 of the Code, the National Company Law Tribunal is vested with all the powers of the Debts Recovery Tribunal, as contemplated under Part II of the Code, for the purpose of subsection (2) of Section 60 of the Code and therefore, it is for the NCLT to consider, all the materials, and pass appropriate orders. 50. Code enables a financial creditor to make an application, under Section 7 of the Code, if the Adjudicating Authority is satisfied that default has not occurred or the application is complete and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application. Contention of the Learned Counsel that applications are mechanically admitted, cannot be accepted. Contention that approach of the 2nd respondent to NCLT, amounts to forum shopping is not tenable, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e), this Tribunal is bound to admit the Application and as a consequence trigger the Corporate Insolvency Resolution Process (CIRP) and in relation to a Section 7 Application defence of set off or counter claim put forth by the Corporate Debtor cannot be considered as a dispute in relation to the Financial debt and default in relation to it. 18. It is also seen that the present Application has been filed before this Tribunal on 17.06.2020 and as such the Notification issued by the Central Government in this regard by increasing threshold limit from ₹ 1 Lakh to ₹ 1 Crore would not apply to the facts and circumstances of the present case, as the amount claimed to be in default is already more than ₹ 1 Crore. 19. It is also noted that the Central government by way of an amendment inserted in Section 10A of I B Code, 2016 wherein the default in respect of the dues arising from the period 25.03.2020 till 25.09.2020, (now extended upto 25.12.2020) has been excluded and as such in the present case from Part-IV of the Application it is seen that the default has occurred much prior to 25.03.2020 and hence Section 10A of I B Code, 2016 also would not come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or _ interrupted during moratorium period. (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or serices 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 such transactions as may be notified by the Central Government in consultation with any financial sector regulator. 24. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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