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TMI Blog2022 (6) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Limited ("the Financial Creditor or FC"), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Rushabh Civil Contractor Private Limited ("the Corporate Debtor or CD"). 2. The Corporate Debtor is a Private Company limited by shares and incorporated on 07.05.2008 under the Companies Act, 1956, with the Registrar of Companies, Maharashtra, Mumbai. Therefore, this Bench has jurisdiction to deal with this petition. 3. The Financial Creditor gave an advance amount of Rs.3,77,00,000/- on 14.09.2016 to the Corporate Debtor. Further Financial Creditor submits that the Corporate Debtor has given Confirmation of accounts dated 15.04.2017 to the Financial Creditor. The Corporate Debtor had promised to pay the interest but f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the heading "Short Term Borrowings Note No. 7 - Inter Corporate Loans". The Corporate Debtor has made a statement in the Balance Sheet that "all the above loans are repayable on demand". The Corporate Debtor not filed the Balance Sheet subsequent to that. Copy of Balance Sheet as on 31.03.2017 is Annexed to Petition as 'Annexure C'. 7. The Financial Creditor had addressed letter dated 14.06.2019 to the Corporate Debtor asking the Corporate Debtor to pay the outstanding debt amount of Rs. 1,51,36,000/- being the debt outstanding as on 31.05.2019. This letter dated 14.06.2019 provided 3 days' time for the Corporate Debtor to make the payment. This letter was received by the Corporate Debtor on 15.06.2019, the Corporate Debtor neither repli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CATION IN ORDER TO PROVE THE EXISTENCE OF FINANCIAL DEBT, THE AMOUNT AND DATE OF DEFAULT". A perusal of the documents enlisted would manifest that the same in no manner demonstrates the terms the terms of the financial debt, the tenure of the debt, details of interest payable and date of repayment etc. and the absence of the written contract is therefore conspicuous. 11. Thus, it is the Petitioners own admission that there is no written contract much less oral contract or financial contract in support of its case. 12. In order to seek order in Section 7 of the IBC, one has to demonstrate that there is debt and default. This can be ascertained on the basis of - i. Contract executed between the Parties. ii. Statement of Accounts. iii. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." (Emphasis supplied) 17. We also consider the facts of the case in the lights of the Order passed by Hon'ble Supreme Court in Swiss Ribbons Pvt. Ltd. & Ors. Vs. Union of India & Ors. [Writ Petition (Civil) No. 99 of 2018] upholding the Constitutional validity of IBC, the position is very clear that unlike Section 9, there is no scope of raising a 'dispute' as far as Section 7 petition is concerned. As soon as a 'debt' and 'default' is proved, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Interim Resolution Professional of the Corporate Debtor. He has filed his written communication in Form 2 as required under rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with a copy of his Certificate of Registration. 22. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Corporate Debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period; (ii) The provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator; (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of Corporate Debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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