TMI Blog2022 (5) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... ption than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. The Application stands admitted in terms of Section 7(5) of IBC, 2016 and the moratorium shall come in to effect as of this date. - CP/IB/75/(CHE)/2021, IA/839/CHE)/2021 and IA/844/CHE)/2021 - - - Dated:- 21-3-2022 - Sucharitha R., Member (J) And Sameer Kakar, Member (T) For Appellant: R. Sivaraman, Advocate For Respondents: T. Lajapathi Roy and T. Tamil Malar, Advocates ORDER Sucharitha R., Member (J) 1. This Application has been filed by one CITY UNION BANK LTD., (hereinafter referred to as 'Financial Creditor') on 18.03.2021 under Section 7 of the Insolvency and Bankruptcy Code, 2016 (I B Code) r/w Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, against MILAN TEXTILE ENTERPRISE PRIVATE LIMITED (hereinafter referred to as 'Corporate Debtor'). The prayer made is to admit the Application, to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor, declare moratorium and appoint Interim Resolution Professional (IRP). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000132170 Rs. 1.75,00,000/- 19.10.2011 30.06.2018 OLCC 116120000132179 Rs. 2,10,00,000/- 19.10.2011 31.05.2018 CUB-OSL SPECIAL 501812080024451 Rs.1,35,00,000/- 30.12.2016 26.07.2018 TOTAL Rs.5,20,00,000/- 8. In respect of the aforesaid loan accounts, the Corporate Debtor had executed ON DEMAND Promissory Notes and other loan documents from time to time for the loan availed by them. The learned Counsel for the Financial Creditor submitted that apart from executing the Promissory Notes, the Corporate Debtor had executed a Memorandum of Deposit of Title Deed registered vide Document bearing No. 5105/2010 dated 18.10.2010 in favour of the Financial Creditor. 9. Thereafter, it was submitted that the Corporate Debtor had failed to adhere to the terms and conditions and despite repeated request made by the Financial Creditor to pay the amount together with interest, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal for default in loan amount to tune of Rs. 8,04,86,434/- with interest for the very same loan facility would amount to forum shopping and hence the present application should be dismissed. 14. The Learned Counsel for the Financial Creditor had filed a rejoinder to the Counter wherein it was stated that the Corporate Debtor admitted the debt amount of Rs. 5,20,0000/-(sic) (Principal amount) in para 6 of the-counter. Further, with respect to the Forum shopping aspect raised by the Corporate Debtor, it is trite law that section 238 of the IBC, 2016 envisaged that the provisions of the Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law and the same has been observed by the Hon'ble NCLAT in the matter of Punjab National Bank vs. N/s. Vindhya Cereals Pvt. Ltd. in C.A. No. 854 of 2019. 15. The learned Counsel for the Financial Creditor further submitted that the Hon'ble NCLAT in the matter of Unlgreen Global Private Limited vs. Punjab National Bank Anr. in C.A. No. 81 of 2017 has confirmed that a matter pending before DRT cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been proven beyond reasonable doubt. Furthermore, the Corporate Debtor admitted the outstanding liability to the tune of Rs. 5,20,00,000/- in para 6 of the Counter Affidavit. 23. Albeit, the Corporate Debtor has raised various grounds like present application is barred by limitation, and that the present application is a parallel application, where DRT proceedings already pending before DRT, Madurai would amount to forum shopping. In so far as the said contentions raised by the Corporate Debtor, the date of NPA is 31.05.2018 and if the said date is to be construed as the date of default then the present Application was filed before this Tribunal as early as on 18.03.2021 and as such the present Application is not barred by limitation. Further, we are of the considered view that there is no dispute regarding the Corporate Debtor owes money to the Financial Creditor and therefore the debt and default is clearly established. 24. Apropos, the Hon'ble Supreme Court in the case of Innoventive Industries Limited v. ICICI Bank Limited, where it has discussed extensively the scope of the Adjudicating authority under section 7 of the IBC is limited to assessing the records pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. 25. In view of the facts as stated supra and also in view of the 'financial debt' which is proved by the Financial Creditor and the 'default' being committed on the part of the Corporate Debtor, this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. 26. As a consequence of the Application being admitted in terms of Section 7 of the Code, moratorium as envisaged under provisions of Section 14(1) and as extracted hereunder shall follow in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reements 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. 28. The duration of period of moratorium shall be as provided in Section 14(4) of the Code which is reproduced below for ready reference; (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 Corporate Insolvency Resolution Process period, if the Adjudicating Authority approves the Resolution Plan under sub-Section (1) of Section 31 or passes an order for liquidation of Corporate Debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or Liquidation Order, as the case may be. 29. The Financial Creditor has proposed the name of Mr. Gopalsamy Ganesh Babu (babu@finrespro.com), Reg. No. IBBI/IPA-002/IP-N00246/2017-18/10731 as the Interim Resolution Professional (IRP) who has also filed his consent in Form - 2 and also upon verification from the IBBI website, it is seen that the said person h ..... 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