TMI Blog2021 (12) TMI 1271X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Application admitted - moratorium declared. - CP (IB) 348/MB/C-II/2020 - - - Dated:- 2-12-2021 - Hon'ble Member (Judicial) Justice P. N. Deshmukh (Retd.) And Hon'ble Member (Technical) Mr. Shyam Babu Gautam For the Financial Creditor : Mr. Kunal Chheda, Advocate. For the Corporate Debtor : Mr. Yogesh Naidu, Advocate. ORDER PER: SHYAM BABU GAUTAM, MEMBER 1. This is a Company Petition filed under section 7 ( the Petition ) of the Insolvency and Bankruptcy Code, 2016 (IBC) by Prabina O. Sharma. ( the Financial Creditors ), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Surya Landmark Developers Private Limited ( the Corporate Debtor ). In order of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest, the Financial Creditor could transfer and recover the outstanding amount. [Para 2(d) of Affidavit in Rejoinder]. 6. The amount was always treated as a loan amount and that is the reason the Corporate Debtor had issued a cheque 364672 dated 10.08.2018 as a repayment of part principal and interest. However the same had returned due to insufficient fund. [ Exhibit D and Exhibit E, Page 33 and Page 34 of the Petition]. 7. The Financial Creditor attached record of National E-Governance Services Ltd. (NSeL) is an Information Utility registered with the IBBI under section 213 and 214 of Insolvency and Bankruptcy Code, 2016. The Corporate Debtor has failed to repay the principal and the Interest. [Annexure I, page 11 (record of default)]. 8. The Financial Creditor has also issued a default notice and recalled principal and interest through advocate. However Corporate Debtor has failed to make the payment. [Exhibit G, Page 38 of the Petition]. Submissions made by the Advocate of Corporate Debtor by way of Affidavit in Reply: A. BARRED BY LAW OF LIMITATION: 9. The cause of action has arisen on 8th March 2016, the date of which the final instalme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Creditor has filed this Petition. 15. In the project in question, the Corporate Debtor has sold all the 49 flats/units to bonafide purchasers and on the Corporate Debtor s termination from the said project, the Corporate Debtor have assured all 49 bonafide flat/unit purchasers that they shall receive their respective flats in other project of the Corporate Debtor, however, the Financial Creditor herein, is the only individual who is not satisfied with the assurances of the Corporate Debtor and has filed this Petition. 16. The Corporate Debtor further submits that in case of the Financial Creditor being treated as allottee, the Petition is not maintainable in terms of proviso to section 7 (1) of the Insolvency and Bankruptcy Code, 2016. The provision is reproduced herein below for ready reference: (1) A financial creditor either by itself or jointly with 2 [other financial creditors, or any other person on behalf of the financial creditor, as may be notified by the Central Government] may file application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is considered as the date of cheque bouncing, the date of Application would still be in limitation. B. ISSUE OF LETTER OF INTENDED ALLOTMENT: i. The Corporate Debtor is relying on Letter of Intended Allotment and has argued that the Letter of Allotment is a subsequent document. However, both the documents have been brought on record in the Application. The amounts were advanced as loan and hence the letter of Mortgage was addressed to Financial Creditor. Since the mortgage of flat that was not constructed was not possible, the Corporate Debtor had issued Letter of Allotment so that security interest is created that can be invoked in case of default. ii. Without prejudice to rights and contentions, if the Letter of Allotment was a subsequent document, then in that case entire amount of Ninety Lakhs should have reflected as earnest amount. iii. Hence it is very evident that both the documents were simultaneously executed in order to safe guard loan amount of Financial Creditor. C. ISSUE OF NO FINANCIAL DEBT DUE AND PAYABLE: It is denied that there is no financial debt due and payable. The Corporate Debtor has issued the cheque towards interest that has returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2018] upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a dispute as far as Section 7 petition is concerned. As soon as a debt and default is proved, the adjudicating authority is bound to admit the petition. 24. The Financial Creditor has proposed the name of Mr. Prakul Thadi, Registration No. IBBI/IPA-002/IP-N01149/2021-22/13806, as the Interim Resolution Professional of the Corporate Debtor. He has filed his written consent in Form 2 as required under rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with a copy of his Certificate of Registration. 25. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration No. IBBI/IPA-002/IP-N01149/2021-22/13806, having address at Flat no. 1405, J Block, Rainbow Vistas, Green Hills Road, Moosapet, Hyderabad 500018, Telangana, India [email: prakulthadi@hotmail.com], is hereby appointed as Interim Resolution Professional (IRP) of the Corporate Debtor to carry out the functions as per the IBC. The fee payable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions issued/as may be issued by the Insolvency Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the IBC. (g) During the CIRP Period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow. (h) The Financial Creditor shall deposit a sum of ₹ 1,00,000/- (Rupees Three Lakhs only) with the IRP to meet the expense ..... X X X X Extracts X X X X X X X X Extracts X X X X
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