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Judgment
ORAL ORDER
When the Arguing Counsel for the Applicant i.e. Financial Creditor did not turn up despite revised call, Ld. Counsel for the Corporate Debtor submitted that he has filed affidavit of Corporate Debtor indicating that the amount of debt would be repaid within 24 months. The captioned application has been preferred under Section 7 of IBC, 2016 for commencement of corporate insolvency resolution process qua the Corporate Debtor. The details of amount of debt and default are mentioned in Part-IV of the application which reads thus:-
Our attention could be drawn to the entries in the Banker’s Book (HDFC Bank) to show the disbursement of amount of debt. The statement of bank account has been placed on record as Annexure A3 to the application. The Applicant has also filed an independent statement giving details of the amount of financial facility disbursed by it to the Corporate Debtor. The statement given in the application reads thus:-
It is the case that partial payment of debt amounting to Rs.20,15,000/-was returned/repaid by the Corporate Debtor. The averment made to the effect in the application reads thus:-
“VIII. That on 22.12.2023, Corporate Debtor made a part payment part of Rs. 20,15,000 (Rupees Twenty Lakhs Fifteen Thousand only), from the total amount due. Details of amounts paid by Corporate Debtor to Financial Creditor are as follows:-
Our attention could also be drawn to the loan agreement, in terms of which the Applicant i.e. Financial Creditor extended the financial facility qua the Corporate Debtor. The loan summary sheet reads thus:-
As can be seen from Schedule-II agreement, the amount of debt was to be repaid as bullet payment. The relevant excerpt from the schedule reads thus:-
The bullet payment was required to be made in 24 months for due on 14.12.2023. The Corporate Debtor filed an affidavit admitting the amount of debt, but sought an opportunity to repay the same within next 24 months. The relevant excerpt of the affidavit filed on behalf of the Corporate Debtor reads thus:-
“a)That the undersigned states that due to significant financial losses incurred by the company during the COVID-19 pandemic, the Corporate Debtor faced substantial difficulties in making payments towards the principal amount. However, despite these challenges, the Corporate Debtor hereby undertakes to settle the outstanding dues payable to the Petitioner within a period of 24 months.
b)Furthermore, the undersigned states that there was never any mutual agreement between the parties regarding the applicability or payment of interest on the principal amount. Accordingly, any claim for interest is not justified and is beyond the terms mutually agreed upon by the parties.
c)That the contents of the present Affidavit are true and correct to the best of my knowledge and no part of this affidavit is false and nothing material has been concealed from this Hon'ble Tribunal.”
In view of the provisions of Section 7(3) & (5) of IBC, 2016 while examining an application preferred under Section 7(1) & (2) of the Code, this Tribunal need to satisfy itself regarding the default in repayment of the amount of debt, completion of the application and there being no disciplinary proceedings pending against the IRP proposed by the Applicant. As far as the debt and default is concerned, our attention could be drawn to the aforementioned documents viz entries in the Banker’s Book and the Loan Agreement and the Affidavit of the Corporate Debtor. The aforementioned documents are sufficient evidence to establish the debt in default. There is no plea raised on behalf of the Corporate Debtor that there is any deficiency in the application in any manner as far as disciplinary proceedings against the IRP is concerned, the IRP has given declaration in Form-2 that no disciplinary proceedings are pending against him. Clause-ii and iv of the Form reads thus:-
“(ii)state that the registration number allotted to me by the Board is IBBI/IPA-002/IP-N00216/2017-18/10668 and that I am currently qualified to practice as an insolvency professionals; x x x
(iv)certify that there is no disciplinary proceedings pending against me with the Board or ICSI INSTITUTE OF INSOLVENCY PREOFESSIONALS;”
We are satisfied that the requirement of Section 7(5) of IBC, 2016 stands satisfied. Thus we are left with no option but to admit the petition. In the wake, moratorium provided under Section 14 of IBC, 2016 is declared qua the CD and as a necessary consequence thereof the following prohibitions are imposed, which must be followed by all and sundry:-
The institution of suits or continuation of pending suits or proceedings against the Respondent including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority:
Transferring, encumbering, alienating or disposing of by the Respondent any of its assets or any legal right or beneficial interest therein;
Any action to foreclose, recover or enforce any security interest created by the Respondent in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002;
The recovery of any property by an owner or lessor, where such property is occupied by or in the possession of the Respondent.
As proposed by the Petitioner, Mr. Sudhanshu Gupta, having Registration IBBI/PA-002/IP-N00216/2017-18/10668 is appointed as IRP, subject to the condition that no disciplinary proceeding is pending against him and disclosures as required under IBBI Regulations, 2016 are made by him within a period of one week from this Order. It is further ordered that Mr. Sudhanshu Gupta shall take charge of the CIRP of the Corporate Debtor with immediate effect and would take steps as mandated under the IBC specifically under Section 15, 17, 18, 20 and 21 of IBC, 2016 read with extend provisions of IBBI (Insolvency Resolution of Corporate Persons) Regulations, 2016.
The Petitioner is directed to deposit Rs. 2,00,000/- only with the IRP to meet the immediate expenses. The amount, however, will be subject to adjustment by the Committee of Creditors as accounted for by Interim Resolution Professional and shall be paid back to the Financial Creditor.
A copy of this Order shall immediately be communicated by the Registry/Court Officer of this Tribunal to the Petitioner /Financial Creditor, the Respondent/Corporate Debtor and the IRP mentioned above.
In addition, a copy of this Order shall also be forwarded by the Registry/Court Officer of this Tribunal to the IBBI for their records.