TMI Blog2022 (3) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... on to trigger Corporate Insolvency Resolution Process under the Code is maintainable. The corporate debtor has failed to show that there is no debt or default in existence so as to avoid the provisions of the Code. The applicant has also placed copies of Form- 26AS showing deposit of TDS on interest over financial debt deposited by the corporate debtor. In the facts it is seen that the applicant clearly comes within the definition of Financial Creditor. The material placed on record further confirms that applicant financial creditor had provided financial facility to the respondent corporate debtor and the respondent acknowledged the same debt in its Balance Sheets and committed default in repayment of the outstanding financial debt. On a bare perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same - the present application is complete in all respect and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been default in payment of the financial debt. In terms of Section 7 (5) (a) of the Code, the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EDC etc to renew its license. d) It is the case of the applicant that on 24.09.2012 and 24.03.2013, the financial creditor provides the margin money in the form of FDRs for the amount of ₹ 2,44,47,000/- on 27.09.2012 and of ₹ 4,25,00,000/- on 21.05.2013 to the corporate debtor. Further on 31.08.2018, the margin monies in the form of FDRs were returned to the Financial Creditor by the bank as a result of release of Bank Guarantee provided Department of Town and Country Planning, HUDS, Chandigarh, Haryana. Hence, the corporate debtor failed to pay the interest to the Financial Creditor on behalf of Corporate debtor to the bank. Furthermore the Balance Sheets of the corporate debtor for the Financial year 2012-13 to 2016-17 clearly reflects the said loan amount disbursed by the financial creditor along with interest @11% per annum. e) It is submitted that the financial creditor issued recall demand notice dated 16.03.2020 for recalling the loan from the respondent company and also demanded the respective interest. Despite receipt of the said demand notice, the corporate debtor failed to take any step. f) Therefore, as per part IV of the application it is cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant No. 2 filed a Police Complaint against the Respondent No. 2 3 for fabricating documents to initiate false and frivolous proceedings. g) It is submitted that inter-se dispute arose between the two groups which resulted in filing the main IB petition filed by Respondent No. 1 which is wholly owned and controlled by Respondent No. 2. The applicant further stated that the Respondent No. 2 also malafidely created hurdles in issuing authorisation to represent Corporate Debtor before this Tribunal. It is also alleged that the Respondent No. 2 is breaching the duties as a Director of Corporate Debtor, it is also claimed that there was transaction took placed between Corporate Debtor and Respondents having commercial effect of borrowing. 6. The Respondent no. 1 (financial creditor) in IA 3626/ND/2021 has filed their reply and submitted as follows: a) It has been pointed out that the right to file reply of corporate debtor was closed vide order dated 17.12.2020. Thereafter, the applicant filed an application under Section 60(5) of the Code seeking intervention in the main IB petition which was rejected by this Authority vide order dated 02.03.2021. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 02.03.2021. The applicants have tried twice to raise similar grounds before this Tribunal. Reasonable opportunity was given to corporate debtor for contesting the main IB petition but failed to do so. Now, the present application has been filed by the applicants raising similar objections against the main IB petition and claim of the Financial Creditor. The applicants even raised similar objections before Hon'ble NCLAT and Hon'ble Supreme Court, but both the Hon'ble Courts dismissed the grounds of the applicants. Thus, the applicants cannot be allowed to raise same objections by way of different applications, when the same has already been dealt. The respondent herein by virtue of the applications wasn't to defence the case, wherein the right to defend has already stand closed. Hence, the applicant cannot be permitted to do (defend) indirectly what he cannot do directly by virtue of filing such like applications. Moreover, merely that one of members of company is partner in the partnership (one of group) and entered into collaboration with the respondent does not establish that there was collusion. Further, there is contention that meger accounts are add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1 Lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable. The corporate debtor has failed to show that there is no debt or default in existence so as to avoid the provisions of the Code. The applicant has also placed copies of Form- 26AS showing deposit of TDS on interest over financial debt deposited by the corporate debtor. 14. In the facts it is seen that the applicant clearly comes within the definition of Financial Creditor. The material placed on record further confirms that applicant financial creditor had provided financial facility to the respondent corporate debtor and the respondent acknowledged the same debt in its Balance Sheets and committed default in repayment of the outstanding financial debt. On a bare perusal of Form - I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. 15. We are satisfied that the present application is complete in all respect and the applicant financial creditor is entitled to claim its outstanding financial debt from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the corporate debtor 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 corporate debtor, 22. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as may be specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018 which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of the Code. 23. The Interim Resolution Professional shall perform all his functions contemplated, inter-alia, by Sections 15, 17, 18, 19, 20 21 of the Code and transact proceedings with utmost dedication, honesty and strictly in accordance with the provisions of the Code, Rules and R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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