ARGUMENTS ADVANCED

1. Whether the application filed by financial creditors is maintainable under Section 7

of Insolvency and Bankruptcy Code, 2016.

It is humbly submitted before the respected Tribunal that the application filed by the
financial creditor i.e. The State Bank of Malta , Shawn and Mac Enterprises is not
maintainable under Section 7 of the IBC,2016 which states that “A financial creditor
either by itself or jointly with other financial creditors may file an application for
initiating corporate insolvency resolution process against a corporate debtor before the
Adjudicating Authority when a default has occurred” , because it is submitted that there
exists a dispute against the amount claimed by the financial creditor . Also, they have
misinterpreted the facts before the Hon’ble Tribunal as the default amount calculated by
the financial creditor is incorrect and contrary to the provision of CLA.

1. That the financial creditors has increased the debt amount.

It is submitted that the Ted Airway has took a loan amounting to Rs.3000crore from
the said financial creditors in 2005.However, the financial creditors has falsely
claimed an unreasonable and excessive amount of Rs.1400 crore without giving any
reasonable ground for such hike in the debt amount.’(Newfinds (India) V Vorion
Chemicals &Distillers (1970)46 Compcas 87(Mad.))

Also, it does not provide any calculative material which shows the reason behind the
hike in debt amount. Thus, the application is false in material facts, so the financial
creditor is liable for furnishing false information. (Section 75 of IBC, 2016).
The debt amount needed to be examined and hence the insolvency application under
Sec 7 of IBC, 2016 is not maintainable.

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1.2 That the CIRP will adversely affect the future of the growth of the company.
It is also submitted that the Ted Airways is one of the most prominent and huge privately owned
company in the Malta. So, it is basically a growth oriented company and at the mean time a
profit making company which includes a large interest of public as well. (Harinagar Sugar Mills
co.ltd. V M.W. Pradhan, AIR1966SC1707).
Hence, the company should be provided with a reasonable chance to revive its assets and thus
the CIRP should not be initiated against the Ted Airways.

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 2. Whether the appointment of an empaneled resolution professional of the
applicant as IRP for Ted Airways will result in rise of conflict?
It is humbly submitted before the Hon’ble tribunal that appointment of the empaneled
resolution professional as an IRP will result in rise of conflict among the parties. Under
Sec 16 (2) which states that “when a CIRP application is made by a financial creditor or
the corporate debtor, as the case may be, the resolution professional, as proposed
respectively in the application under sec7 or sec 10, shall be appointed as the IRP, if no
disciplinary proceedings are pending against him.

2.1. That the appointment of the empaneled IRP will be against the principle of
natural justice.
It is very much clear from the facts of the case that the name of Mr. Tucker has been
recommended by the financial creditors as an IRP. Thus, it creates some kind of biasness
towards the financial creditors. Also, he is bound to emphasize on the recovery of the debt
amount from the corporate debtor. So, the corporate debtor has a pre conception that the IRP is
biased towards the financial creditor which affects the interest of the company and also it is
contrary to the code. Moreover, such appointment is contrary to the provision of principle of
natural justice i.e. “nemo judex in causa sua”, which the Hon’ble tribunal is required to abide.

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