TMI Blog2022 (6) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition admitted - moratorium declared. - CP (IB) No. 1337/MB/2020 - - - Dated:- 16-6-2022 - Mr. Rajesh Sharma Hon ble Member (Technical) And Mr. Kishore Vemulapalli Hon ble Member (Judicial) For the Petitioner : Mr. Rohan Agarwal, Advocate For the Respondent : Mr. Gaurav Joshi, Senior Counsel a/w Ashok Paranjape i/b MDP Partners ORDER Per: Rajesh Sharma, Member (Technical) 1. This is an application being CP (IB) No.1337/MB/2020 filed by SREI EQUIPMENT FINANCE LIMITED, the Financial Creditor/Applicant, under Section 7 of the Insolvency Bankruptcy Code, 2016 (I B Code) against NIRMAL LIFESTYLE (KALYAN) PRIVATE LIMITED, Corporate Debtor, for initiating Corporate Insolvency Resolution Process (CIRP). 2. The Date of Default is 05.02.2020. The Financial Creditor is claiming an amount of Rs. 7,87,50,000 (Rupees seven crore eighty-seven lakh fifty thousand only) as on 07.09.2020 as mentioned in Part -IV of the petition. The petition has been filed on 30.11.2020. 3. The case of the Financial Creditor is as under: a. The Corporate Debtor through Loan Agreement dated 05/08/2019 has availed Financial Assistance from the Financial Creditor for an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opriated in the loan agreement was utilised for the purchase of equipment and construction tools for completion of construction, dressing and levelling on certain properties. b. As per the Loan Agreement the 1st instalment became due on 5.02.2020. The Corporate Debtor through its e-mail dated 31.03.2020 requested the Financial Creditor for restructuring the said Loan amount and moratorium on all payments for following six months on account of widespread economic and financial disruptions caused by COVID 19 pandemic and resultant Lockdown. c. The said alleged loan has been secured by multiple mortgages/collaterals/securities, which are more accurately described in Exhibit F, G and H annexed to the Petition. In view of the above made submission, the Corporate Debtor has relied upon the Judgment of Hon ble Supreme Court of India in Transmission Corporation of Andhra Pradesh Limited v. Equipment Conductors and Cables Limited, 2019 12 SCC 697 at paragraph 15, which is as follows: In a recent judgement of this Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited,2018 1 SCC 353, this court has categorically laid down that IBC is not intended t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Corporate Debtor while explaining the inordinate delay in completion of project and the severe prejudice caused to home buyers said that the same was because the Hon ble Finance Minister announced that the Union Cabinet had cleared a proposal to setup a special window in the form of an Alternate Investment Fund (AIF) to provide debt financing for completion of stalled housing projects. The details of the same are placed at page 3 of the Written Submissions of the Corporate Debtor. g. The Corporate Debtor further submits that the documents were insufficiently stamped and the Financial Creditor has failed to pay the adequate stamp duty on the said Loan Agreement. h. The Corporate Debtor submits that the Financial Creditor has charged exorbitant and unreasonably high rate of interest and the same has been tabulated in Exhibit - J of the petition. i. The Corporate Debtor furthers states that present petition was barred under section 11(a) and Section 25(2)(b) of the Code. The Corporate Debtor has relied upon the Judgment of Hon ble Kolkata Bench in CP No.294/2021 in Reserve Bank of India v. SREI Equipment Finance Limited it has been held that Hon ble Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,87,50,000 Although from the petition, pleadings made and arguments extended by the Counsel of both the sides, it is observed that the defaults in Loan account under Contract No.179643 at Serial No 1 and 2 are dated 05.02.2020 and 05.03.2020 and the remaining defaults were on or after 05.04.2020 which comes under section 10A of the IBC 2016 which cannot be considered as default. Hence, the bench is of considered view that the actual default made by the Corporate Debtor is Rs.1,12,73,387 along with interest.Therefore, it is a fit case for Admission of the Corporate Debtor into Insolvency, because Debt and Default is established and the amount of Debt is more than threshold limit i.e. Rupees One Crore. The application is complete and has been filed under the proper form. Hence, the Application filed by the Financial Creditor is hereby deserves to be admitted. 9. The Applicant has proposed the name of Mr. DilipKumar Natvarlal Jagad, a registered insolvency resolution professional having Registration Number [IBBI/IPA-001/IP-P00233/2017-2018/10462] as Interim Resolution Professional, to carry out the functions as menti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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