2017 (9) TMI 1965 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - financial debt or not - existence of debt and dispute or not - HELD THAT - The amount claimed in this case, according to the Applicant, is for allotment of shares of the Respondent Company. In fact, 5,25,000 shares of the Respondent Company were allotted to the Applicant Company but the allotment of such shares was held to be illegal and the allotment was set aside by an order of Company Law Board - It appears that the only property of the Respondent Company was sold with the permission of the Applicant Company and the amount is lying in the National Company Law Tribunal. There is no order from the National Company Law Tribunal that Applicant is entitled for the amount invested by it for the shares allotted to it and that were cancelled. Therefore, it cannot be said that any amount is due to the Applicant from the 1st Respondent Company as a debt much less as a financial debt. Application disposed off.

Summary

Issues involved: Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 to initiate Corporate Insolvency Resolution Process against a Corporate Debtor, determination of whether the claimed amount constitutes a financial debt.

Analysis:
1. The Applicant, identified as a Financial Creditor, filed an Application under Section 7 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate Corporate Insolvency Resolution Process against the Corporate Debtor, Onaex Natura Private Limited. The Applicant's claim is based on the cancellation of shares allotted by the Respondent Company, as ordered by the Company Law Board in a previous case. The Applicant asserts a financial claim of ?79,15,480 due to the cancelled allotment of shares.

2. The Application details the history of the dispute, including a Company Petition filed by two shareholders of the Respondent Company alleging oppression and mismanagement. The Company Law Board's order in 2013 cancelled the allotment of shares to the Applicant, leading to the current financial claim. Additionally, the Applicant provided evidence of an unsecured loan to the Respondent Company and a statement by one of its directors regarding the sale of the company's property.

3. The Respondent Company failed to appear before the Adjudicating Authority despite proper notice and service. Various attempts were made by unauthorized representatives to delay proceedings, which were not considered valid by the Tribunal. The absence of a proper response from the Respondent led to the uncontested nature of the matter.

4. The key issue in this case revolves around determining whether the amount claimed by the Applicant qualifies as a financial debt under the Insolvency and Bankruptcy Code. The Applicant argues that the cancelled shares constitute a financial debt, while the Respondent's property sale proceeds are held by the Tribunal pending resolution of related applications from the Company Petition filed earlier.

5. The Tribunal highlighted that no specific order from the National Company Law Tribunal has established the Applicant's entitlement to the amount invested in the cancelled shares. As a result, the Tribunal concluded that there is no debt owed to the Applicant by the Respondent Company, especially not as a financial debt. The matter of the Applicant's share in the sale proceeds of the Respondent's property is deemed pending and subject to adjudication in the related Company Petition proceedings.

In conclusion, the Tribunal dismissed the Application for Corporate Insolvency Resolution Process, emphasizing the need for a clear determination of financial debts and the pending adjudication of related matters from previous legal proceedings involving the parties.