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TMI Blog2022 (6) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial Creditor in the petition that the Financial Creditor grants credit facilities to the individual for purchase and acquisition of residential and commercial apartments or spaces, apart from granting credit facilities to diverse promoters and developers for project finance and construction of diverse projects. It is stated that the Financial Creditor is a company of repute in the housing finance sector. 4. It is further submitted that the Corporate Debtor is a company engaged in the business of clothing and apparels and had approached the Financial Creditor in regard to credit facilities to the tune of Rs. 1,75,00,000/- and after due deliberation and negotiations between the parties, the Financial Creditor agreed to sanction and disburse credit facilities to the Corporate Debtor provided the Corporate Debtor complied with necessary formalities. 5. It is further stated that the Corporate Debtor agreed that in lieu of grant of credit facilities, a Commercial Property being Module No. 205, 1st Floor, South West Side Standard Design Factory-C/III (SDF) Project Name-Paridhan Garment Park, Premises No. 19, PS-Belighata, Ward No. 57, Kolkata 700015, shall be mortgaged in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default in making such payment towards financial debt. 10. In the reply affidavit filed by the Corporate Debtor through one of its Directors Mr. Narendra Kumar Agarwal, it is submitted that in the application it has been alleged that the date of default is 5th August, 2018 but in the statement of accounts relied upon by the Financial Creditor, the alleged default on 5th August, 2018 was made good by the Corporate Debtor by making payment of Rs. 2,43,546/- through cheque bearing No. 852629 dated 31st August, 2018. 11. It is submitted that pursuant to sanction of loan facility of Rs. 1,75,00,000/- @ 11.25% interest which was repayable by 120 monthly instalments, the Corporate Debtor started repaying the EMIs regularly but in the middle of 2018, the Corporate Debtor has suffered acute financial crunch due to recession in the market, when the Financial Creditor started pressurizing the Corporate Debtor for payment. In spite of a few representations made to the Financial Creditor to allow moratorium till 31st March, 2019 to enable the Corporate Debtor to cope up with the adverse market scenario, but unfortunately the Financial Creditor did not respond to the same. It is submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is submitted that steps taken by the Financial Creditor under Section 13 of the SARFAESI Act, 2002 are wrongful and illegal, which has been challenged by the Corporate Debtor in an appeal filed under Section 17 of the SARFAESI Act, 2002. It is denied that a sum of Rs. 2,87,72,816.65 or any part thereof is due or receivable by the Corporate Debtor to the Financial Creditor or that the Corporate Debtor is in default in making payments towards the financial debt. 18. During the course of arguments, Ld. Counsel for the Financial Creditor has taken us through all the pleadings and documents placed along with the pleadings by the Financial Creditor. He has shown us the sanction letter dated 23rd May, 2017 sanctioning amount of Rs. 1,75,00,000/- which would carry a floating rate of interest @ 18% and repayable within 120 months of EMI's of Rs. 2,43,546/- only. The Financial Creditor has also shown us a copy of the loan agreement dated 31st May, 2017 and the demand promissory note dated 31st May, 2017 and all other documents to prove the disbursement of the loan. 19. It is submitted by the Financial Creditor that even though the Corporate Debtor has in its reply affidavit affirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has further submitted that no disciplinary proceedings are pending against him with the Board or Institute of Insolvency Professionals of ICAI. 23. In the present proceedings under section 7 of the Code, we have to only satisfy ourselves about the existence of financial debt and that the default has occurred in repayment of the financial debt by the Corporate Debtor and as soon as the Adjudicating Authority is satisfied that the default has occurred, the petition must be admitted. In the present case, the Corporate Debtor was and is unable to show that there was no default and on the contrary, the Corporate Debtor has admitted the default in repayment of loan on its part. It is apparent that the Corporate Debtor is unable to repay the loan amount and has committed default and the present petition is, therefore, deserves to be admitted for CIRP. 24. We, therefore, pass the following orders:- ORDERS i) The application filed by the Financial Creditor under Section 7 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor is hereby admitted. ii) We hereby declare a moratorium and public announcement in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49/2017-18/11569, hereby appointed as Interim Resolution Professional for ascertaining the particulars of creditors and convening a Committee of Creditors for evolving a resolution plan subject to production of written consent within one week from the date of receipt of this order. x) The Interim Resolution Professional should convene a meeting of the Committee of Creditors and submit the resolution passed by the Committee of Creditors and shall identify the prospective Resolution Applicant within 105 days from the insolvency commencement date. xi) The Financial Creditor/Applicant is directed to deposit Rs. 5,00,000/- (Rupees Five Lakh Only) with the IRP appointed hereinabove within three days from this order. IRP can claim the preliminary expenses and fees subject to the approval by the CoC and after constitution of CoC. xii) Registry is hereby directed to communicate the order to the Financial Creditor, the Corporate Debtor, the I.R.P. and the jurisdictional Registrar of Companies by Speed Post as well as through email. xiii) List the matter on 02/08/2022 for the filing of the progress report. xiv) Certified copy of the order may be issued to all the concerned parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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