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2019 (11) TMI 593 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor defaulted in making repayment of loan amount - existence of debt and dispute or not - Appellant submits that the Corporate Debtor deducted TDS on the interest paid by the Corporate Debtor while returning the loan which is sufficient to show that there was financial debt - HELD THAT - Merely pointing out that TDS was deducted would not be sufficient to conclude that there was financial debt. TDS can be deducted for various reasons. As regard relying on Section 10 of the Contract Act, 1872, in our view IBC is a complete code in itself. Section 238 of IBC has overriding effect on provisions inconsistent with IBC. The Financial contract is defined in Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 Rule 3(1)(d) requires setting out the terms of the financial debt including tenure etc. - It is found that Appellant has failed to show any record showing financial debt to be there. As such, there are no fault in the impugned order while rejecting Section 7 application. The part of impugned order of the Adjudicating Authority as regards the imposing of a fine of ₹ 1 lakh relying on Section 75 of IBC is set aside - Rest part of the impugned order does not call for interference - appeal allowed in part.
Issues:
1. Rejection of Section 7 proceeding under Insolvency and Bankruptcy, 2016 by the Adjudicating Authority. 2. Disbursement of funds by the Appellant to the Corporate Debtor and subsequent repayments. 3. Lack of documentary evidence to establish financial debt and existence of a financial contract. 4. Interpretation of Section 10 of the Contract Act, 1872 in relation to oral agreements. 5. Definition of "financial contract" under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 6. Consideration of TDS deduction as proof of financial debt. 7. Applicability of Section 238 of IBC as an overriding provision. 8. Imposition of a fine under Section 75 of IBC for false information. Analysis: The Appellant filed a Section 7 proceeding under the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor, which was rejected by the Adjudicating Authority. The Appellant claimed to have disbursed funds to the Corporate Debtor, with partial repayments made by the latter. However, the Adjudicating Authority found a lack of documentary evidence, such as a loan agreement or demand promissory note, to establish the existence of a financial debt and a financial contract between the parties. The Appellant argued that the Corporate Debtor's deduction of TDS on interest payments was indicative of a financial debt. Additionally, the Appellant relied on Section 10 of the Contract Act, 1872, which allows for oral agreements. However, the Tribunal noted that the Insolvency and Bankruptcy Code is a self-contained legislation, and Section 238 gives it overriding effect over inconsistent provisions. The definition of "financial contract" under the Rules requires specific terms to be set out, which were not evidenced by the Appellant. While the Appellant contended that a financial contract can be oral, the Tribunal emphasized the need for clear documentation to establish financial obligations. Merely citing TDS deduction was deemed insufficient to prove the existence of a financial debt. The Tribunal found that the Appellant failed to provide records demonstrating the presence of a financial debt, leading to the rejection of the Section 7 application. Regarding the imposition of a fine under Section 75 of the IBC for false information, the Tribunal set aside this part of the Adjudicating Authority's order, as it was considered improper. The appeal was disposed of at the admission stage, with the rest of the impugned order upheld, emphasizing the importance of substantiating financial claims with proper documentation under the Insolvency and Bankruptcy Code.
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