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2017 (12) TMI 1798 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Whether the respondent company was in existence as on the date of filing this petition? If not, whether this petition is maintainable as its name was struck off from the Company Master Data as alleged? - HELD THAT - A reference of the resolution submitted by the Ld. Counsel for the respondent shows that respondent company was active when the Board of Directors convened meeting on 20/10/2017. It is in that meeting the board of directors authorized the Ld. Counsel to appear before the Tribunal for and on behalf Of the respondent. This petition being filed on 01.08-2017 that is before the date of above referred resolution. legitimate inference is that on the date of filing Of the petition. the respondent company was active and, therefore, the contention of the Ld. Counsel for the respondent that the company was not active on the date of filing of the petition is found devoid of any merit - The contention that this petition is not maintainable because the respondent name was removed from the Company Master Data is therefore, found not at all sustainable. Exhibit-B is a promissory note or not - debt claimed by the petitioner is a financial debt comes under the purview of section 5(8) of I B Code or not? - HELD THAT - Exhibit-B comes under the purview of financial debt. Exhibit-B relied upon by the petitioner does not stipulate liability on the respondent to pay interest as claimed. So, also there are no terms stipulated in it that he is liable to repay after enjoying the amount for four months with interest. (enjoying is shown in bold letter to indicate the word used by the petitioner in Ext.B) - Exhibit-B is neither a promissory note, nor a receipt as alleged in Form I and that Exhibit-d has not acquired the status of a financial debt. So also, it does not have consideration for the time value of money. Thus, nor a receipt as alleged in Form 1 and that Exhibit-B has not acquired the status of a financial debt. So also, it does not have consideration for the time value of money. Thus, the debt claimed by the petitioner in the instant case is not a financial debt and, therefore, the claim of the petitioner that the debt claimed by her is a financial debt is also found devoid of any merit. Existence of default as per Sec. 7 (4) (2) of I B, Code or not - HELD THAT - The existence of default is one among the ingredients to be proved on the side of the petitioner for getting admission of a petition of this nature. petitioner failed to prove the existence of a default. The mere contention that there was no reply to the notice repeatedly served on the respondent itself cannot be inferred as an admission of the liability by the respondent in the peculiar nature and circumstances of the case in hand. To complete the petition filed under Sec. 7 1 B Code, the petitioner shall produce or shall furnish along with the petition the record of default, record of information utility and such other record or evidence of default as may be specified. Truly, till date none specified as to the nature of document proving the existence of default other than referred to in Sec. 7(3) (a) shall be produced in a case of this nature. Admittedly, the petitioner did not produce any information utility or bank statement. The only document produced by the petitioner is the copy of demand notice allegedly served on the respondent. In a case of this nature, production of the copy of demand notice and evidence to the effect that there was no reply itself is not satisfactory to hold that the petitioner succeeds in proving the existence of default in this case. Thus, the issuance of demand notice like the notice sent by the petitioner is not at all a pre-requirement for initiation of corporate insolvency resolution process by a financial creditor under Sec. 7 (1) of I B Code. Truly, if it is a petition filed under Sec.9, Sec .8 (I) requires issuing demand notice before the filing of the application - thus, the petitioner failed to prove the existence of default as alleged. Application disposed off.
Issues Involved:
1. Whether the respondent company was in existence as on the date of filing this petition and whether this petition is maintainable as its name was struck off from the Company Master Data as alleged? 2. Whether Exhibit-B is a promissory note as alleged and if so, whether the debt claimed by the petitioner is a financial debt under section 5(8) of IBC? 3. Whether the petitioner succeeded in establishing the existence of default as per Sec. 7 (4) (2) of IBC? 4. Reliefs and costs. Detailed Analysis: Issue 1: Existence and Maintainability The respondent argued that the petition was not maintainable as the respondent company was not in existence on the date of filing the petition, supported by Exhibit-R, a Company Master Data dated 10th November 2017. However, Exhibit-A, another Company Master Data dated 16th June 2017, showed the company as active. Furthermore, a resolution dated 20th October 2017 authorized the respondent's counsel to appear before the Tribunal, indicating the company was active on that date. The petition was filed on 1st August 2017, before the resolution date, proving the company was active at the time of filing. Therefore, the contention that the company was not active on the date of filing is without merit, and the petition is maintainable. Issue 2: Nature of Exhibit-B and Financial Debt Exhibit-B, alleged to be a promissory note, was not produced in its original form, only a copy was provided. The document, printed on the respondent company's letterhead and signed by its director, lacked an adhesive stamp and did not meet the requirements of a promissory note under Sec. 2(22) of the Indian Stamp Act, 1899. Additionally, there was inconsistency in the petitioner's identification, raising doubts about the document's genuineness. As per the Indian Stamp Act, a promissory note must be stamped if the consideration exceeds ?5000, which Exhibit-B was not. Therefore, Exhibit-B cannot be relied upon as a promissory note or receipt. For a debt to be considered a financial debt under Sec. 5(8) of IBC, it must involve consideration for the time value of money, typically evidenced by interest. Exhibit-B did not stipulate any terms of repayment or interest, failing to meet the criteria for a financial debt. The petitioner did not provide any evidence proving the respondent's liability to repay with interest. Hence, the claim of a financial debt by the petitioner is without merit. Issue 3: Existence of Default The petitioner alleged default based on demand notices (Exhibits C and D) sent to the respondent, which did not elicit any reply. However, the absence of a reply does not constitute proof of default. The petitioner did not produce any record of default, information utility, or bank statements to substantiate the claim. Issuance of a demand notice is not a prerequisite under Sec. 7(1) of IBC, unlike Sec. 9. Therefore, the petitioner failed to prove the existence of default as required under Sec. 7(4)(2) of IBC. Reliefs and Costs Given the findings on the above issues, the petition does not meet the requirements for initiating the corporate insolvency resolution process. The petitioner failed to establish the existence of a financial debt and default. Consequently, the petition is dismissed, and no relief or costs are awarded. Conclusion The petition was dismissed as the petitioner failed to prove the existence of a financial debt and default. The respondent company was active at the time of filing the petition, making the petition maintainable, but the lack of sufficient evidence regarding the financial debt and default led to its dismissal.
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