TMI Blog2022 (7) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... that fresh period of limitation will come into play on the due acknowledgement of debt by the Corporate Debtor. The Application stands well within the period of limitation by the virtue of reflection of debt amount reflected in the Balance Sheet of the Corporate Debtor for the year ended on 01.09.2018 and the same shall be treated as acknowledgement of debt by the virtue of the Hon'ble Supreme Court judgment in ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED VS. BISHAL JAESWAL . ANR, [ 2021 (4) TMI 753 - SUPREME COURT ], Further this Applicant has filed this present Application on 20.11.2020, thus this Application stands well within the period of limitation. In view of the facts 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. Application admitted - moratorium declared. - IBA/706/2020 and IA/756/CHE/2021 - - - Dated:- 1-7-2022 - S. Ramathilagam, J. (Member (J)) And Anil Kumar B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Professional (IRP). 5. From Part-IV of the Application, it is seen that the Financial Creditor has claimed a sum of Rs. 255,45,22,996/- (Rupees two hundred and fifty five crore forty five lakhs twenty two thousand nine hundred and ninety six only) which is due and payable by the Corporate Debtor along with interest. The date of default is 19.03.2015 by the virtue of this Tribunal order dated 07.01.2022 in IA/756/CHE/2021. Further, it is averred in Part-TV of the Application that Corporate Debtor is liable to pay the interest in terms of the Loan Agreements. 6. Part V of the application describes the particulars of Financial Debt, documents, records and evidence of default and the same is enumerated hereunder:- (i) Statement of Accounts [Exhibit A-4] (ii) Share Warrants Subscription Share Holders Agreement (SWSS) 29.03.2007 [Exhibit A-5] (iii) Termination Agreement of SWSS 31.07.2008 [Exhibit A-6] (iv) Debt Agreement-01.08.2008 [Exhibit A-7] (v) Loan Agreement-23.12.2009 [A-8] (vi) Supplemental Loan Agreement - 26.04.2013 [Exhibit A-9] (Vii) Letter to the Corporate Debtor-27.03.2014 [Exhibit A-10] 7. The Ld. Senior Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit defaults in repayment of the Loan, Interest, Additional Interest and other charges under the Supplemental Loan Agreement. Further the Ld. Counsel submitted that post-dated cheques given by Corporate Debtor towards discharge of its liability under the Supplemental Loan Agreement were dishonoured for insufficiency of funds. 11. The Ld. Senior counsel for the Applicant submitted that demand Notice was issued by the Applicant on 09.10.2020 for which the Respondent has issued a Reply dated 12.10.2020 and the same is placed as pages 257-302 of the Application typeset. Further the Ld. Counsel for the Applicant submitted that on account of such default committed by the Corporate Debtor, a sum of Rs. 255,45,22,996/- [Rupees two fifty five crore forty five lakhs twenty two thousand nine hundred and ninety six] has become due and payable to Financial Creditor as of 31.10.2020 along with interest @ 16% XIRR from 01.01.2016 till the date of payment of the alleged debt amount claimed to be in default. 12. The Ld. Counsel for the Applicant submitted that this is a clear case of debt and default due and payable by the Corporate Debtor as the same is reflected in the Audited Financial sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. The Ld. Counsel for the Respondent closed his arguments stating that this is a peculiar case in which it can be seen that the security documents relied upon by the Applicant has become unenforceable by the virtue of the Applicant failing to fulfill the reciprocal promises. Further there is a civil suit pending on the file of the Hon'ble High Court of Bombay for the similar cause of action i.e. for recovery of the alleged debt of Rs. 118,76,64,226/- (Rupees one hundred and eighteen crore seventy lakh sixty four thousand two hundred and twenty six) along with interest. Thus this present Application is liable to be dismissed in limine. 17. Heard the submissions made by the Learned Counsel for both the parties and perused the records including the pleadings placed on record. This Tribunal after comprehensively hearing the said matter is of the view that, the debt and default had been proven beyond reasonable doubt. Furthermore the audited financial statements of the Corporate Debtor for the year ended on 31.03.2015, 31.03.2016 and 31.03.2018 clearly proves the presence of a debt due and payable by the Corporate Debtor to the Applicant Financial Creditor. 18. Apropos, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in part III, particulars of the financial debt in part IV and documents, records and evidence of default in part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt , which may also include a disputed c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; d. The recovery of any property by an owner or lessor where such property is occupied by or in the possession of the respondent. Explanation,-For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a licence, permit, registration, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license or a similar grant or right during moratorium period; 23. However during the pendency of moratorium period in terms of Section 14(2) and 14(3) as extracted hereunder; (2) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (2A) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard such other and further steps as are required under the Statute, more specifically in terms of Section 15, 17, 18 of the IBC, 2016 and file his report within 30 days before this Bench. The powers of the Board of Directors of the Corporate Debtor shall stand superseded as a consequence of the initiation of the CIRP in relation to the Corporate Debtor in terms of the provisions of IBC, 2016. 28. The IRP shall comply with the provisions of Sections 13(2), 15, 17 18 of the Code. The Directors of the Corporate Debtor, its Promoters or any person associated with the management of the Corporate Debtor are/is directed to extend all assistance and cooperation to the IRP as stipulated under Section 19 of IBC, 2016 for the purpose of discharging his functions under Section 20 of IBC, 2016. 29. The IRP shall conduct the Corporate Insolvency Resolution Process in respect of the Corporate Debtor as stipulated under Chapter VIII of IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 30. Based on the above terms, 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. A copy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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