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TMI Blog2020 (11) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... having CIN: U52599TN1991PTCO21070 with the Nominal Share Capital of Rs. 3,65,00,000/- and Paid-up Share Capital of Rs. 3,65,00,000/-. 3. From Part-III of the Application, it is seen that the Financial Creditor has proposed one Mr. A. Mohan Kumar (Reg. No. IBBI/IPA-002/IP-N00377/2017-2018/11120) as the Interim Resolution Professional (IRP) and the written communication of the said IRP obtained in Form-2 is placed at page No.64 of the typed set filed along with the Application. Part-IV of the Application discloses the total amount of debt from which it is evident that the Financial Creditor has claimed a sum of Rs. 2,74,08,639/- as against the Corporate Debtor and that the account of the Corporate Debtor was classified as Non - Performing Asset (NPA) on 31.10.2016. 4. Part-V of the Application contains the list of documents filed by the Financial Creditor in order to prove the existence of Financial Debt, which are as follows; (i) Loan Agreement dated 30.06.2015. (ii) Deed of Guarantee dated 28.05.2015. (iii) | 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor. 9. The Ld. Counsel for the Corporate Debtor further submitted that the Corporate Debtor has paid EMI for a sum of Rs. 3,10,533/- per month continuously for a period of two years and the Company has already paid a sum of Rs. 34,44,209/- to the Financial Creditor ~ and also disbursed a sum of Rs. 18,38,141/- on 13.04.2017 towards the said project to regularize the EMI. 10. It was further submitted by the Ld. Counsel for the Corporate Debtor that the Financial Creditor has already initiated action under the SARFAESI Act, 2002 and as such the mortgaged property has been taken possession by the Financial Creditor as on 04.04.2018 under the SARFAESI Act, 2002, which fact was concealed by the Financial Creditor in the present Applicant filed before this Tribunal. It was further submitted that the present Application has been filed for recovery of Rs. 2,74,49,023/- and the Financial Creditor has admitted in the application itself that the estimated value of the property is Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. We do not find any substance in the Appeal. The Appeal is dismissed. No costs." 14. It is also significant to refer to the decision of the Hon'ble Madras High Court in the matter of M/s. Anandram Developers Pvt. Ltd. & Anr. -Vs- The National Company Law Tribunal & Anr. in W.P Nos. 29084 and 29085 of 2017 and W.M.P. Nos. 31321 to 31323 of 2017 decided on 17.11.2017, wherein it has held as follows; "48. Further contention of the petitioners that the action of the 2nd respondent in approaching the NCLT, would amount to forum shopping, also cannot be countenanced, for the reason, I&B code, 2016, has been enacted, consolidating various enactments, such as, Sick Industrial Companies (Special Provisions) Act, 1985; the Recovery of Debts Due to the Banks and Financial Institutions Act, 1993; the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; Companies Act, 2003; Insolvency and 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under SARFAESI Act, 2002 is for recovery of the amount which is due and payable to the Financial Creditor. 17. Under these circumstances, we are satisfied 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 has also been consistently held by the Hon'ble Supreme Court both in Innoventive Industries Ltd. -Vs- ICICI Bank and another (2018) 1 SCC 407 as well as Mobilox Innovations Pvt. Ltd. -Vs- Kirusa Software Pvt. Ltd. (2018) 1 SCC 353 after going through the Scheme of I&B Code, 2016 in depth in relation to an Application under Section 7 filed by a Financial Creditor as compared to the one filed under Section 9 by an Operational Creditor, in relation to a Section 7 Application where there is an existence of a 'financial debt' and its default is in excess of Rs. 1,00,000/- (now increased to Rs. 1 Crore), 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of pending suits or proceedings against the respondent including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; b. Transferring, encumbering, alienating or disposing of by the respondent any of its assets or any legal right or beneficial interest therein; c. Any action to foreclose, recover or enforce any security interest created by the respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. 23. However, during the pendency of the moratorium period in terms of Section 14(2) (2A) and 14(3) as extracted hereunder: (2) The supply of essential 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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