TMI Blog2022 (6) TMI 1087X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Petition admitted - moratorium declared. - C.P. (IB) No. 1908/KB/2019 - - - Dated:- 13-6-2022 - Rohit Kapoor, Member (J) And Harish Chander Suri, Member (T) For the Appellant : Snehashis Sen, Adv. For the Respondents : Soma Ray, Adv. ORDER Harish Chander Suri, Member (T) 1. The Court is convened by video conference today. 2. This petition under section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been filed by Reliance Home Finance Limited, through its authorised signatory Mr. Prashat Burman, vide Board Resolution dated 24.04.2017 (Annexure-B) (hereinafter referred to as the Financial Creditor) for initiation of Corporate Insolvency Resolution Process in respect of Raghav Sarees Private Limited, having its registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default committed by the Corporate Debtor, the loan account of the Corporate Debtor became NPA on 8th January, 2019. Thereafter, the Financial Creditor issued a loan recall notice dated 21st January, 2019 claiming a sum of Rs. 1,79,21,300/- but despite receipt of such notice, the Corporate Debtor has failed and neglected to clear up the dues of the Financial Creditor. Even, thereafter, the Financial Creditor issued a notice dated 12th February, 2019 under Section 13(2) of the Securitization ad Restructuring of Financial Assets and Enforcement of Security Interest Act, 2002 claiming a sum of Rs. 1,80,75,016/- which was responded to by the Corporate Debtor claiming the notice to be allegedly unsigned and illegal but no defence was put up as to the defaults committed by the Corporate Debtor in payment of the loan. It is submitted that the Financial Creditor took symbolic possession of the property in terms of section 13(4) of Securitization ad Restructuring of Financial Assets and Enforcement of Security Interest Act, 2002 read with Rule 8(1) of the Security Interest (Enforcement) Rules, 2002 and was issued to the Corporate Debtor. 9. It is finally submitted by the Financial Credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor to clear the outstanding dues immediately. The Corporate Debtor further submits that another legal notice dated 4th June, 2019 was issued by the Financial Creditor, when it was alleged that for repayment of the dues of the Financial Creditor, cheque dt. 25th May, 2019 for a sum of Rs. 1,80,75,016/- was issued by the Corporate Debtor, drawn on IDBI Bank, Park Street Branch, Kolkata. Such legal notice was issued under Section 138(B) of the Negotiable Instrument Act, 1881 and the allegations were also false, frivolous and absurd. 14. It is submitted that when the outstanding amount was Rs. 21,85,497/- on 15th May, 2019, the question of issuing such cheque on 21st May, 2019, for a sum of Rs. 1,80,75,016/- could not arise. It is submitted that the Financial Creditor by mis-utilizing the blank cheque handed over to it at the time of sanction of loan facility had made out such a false, frivolous and concocted case upon the Corporate Debtor. 15. It is submitted that since the demand notice dated 12th February, 2019 was itself unsigned and not legally enforceable, all action taken including the issuance of the purported possession notice was illegal and void ab initio. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection with the notice under SARFAESI Act, 2002 without any evidence. From the record, we observe that the disputes raised by the Corporate Debtor are nothing but sham and frivolous. 21. The Corporate Debtor has raised issue that the Financial Creditor is itself undergoing resolution process. In this regard, it is submitted by the Financial Creditor that at the time of initiation of the present case, the Corporate Debtor was not under CIRP and hence the Corporate Debtor does not fall within the purview of the provisions of Section 11 of the IBC. In any event, explanation II of Section 11 of the IBC categorically clarifies that nothing in this Section shall prevent the Corporate Debtor, referred to in Clauses (a) to (d) of the said Section from initiating CIRP against another Corporate Debtor. Therefore, it is clear from the statute itself that the fact that the Financial Creditor herein is undergoing resolution process itself, is not a bar to maintain the instant application against the Corporate Debtor. 22. The Financial Creditor has proposed the name of Mr. Niraj Kumar Agrawal, to act as an IRP having Registration No. IBBI/IPA-001/IP-P00949/2017-2018/11569, who has consente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reclose, recover or enforce any security interest created 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 (54 of 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. v) The supply of essential goods or services rendered to the corporate debtor as may be specified shall not be terminated, suspended, or interrupted during the moratorium period. vi) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. vii) The order of moratorium shall have effect from the date of admission till the completion of the corporate insolvency resolution process. viii) 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 the corporate debtor under Section 33, the moratorium shall c ..... 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