2023 (7) TMI 1242 - AT - Insolvency and Bankruptcy

Maintainability of application u/s 7 of IBC - initiation of CIRP - legitimate loan transactions between the Appellant and the Corporate Debtor or not - disbursement to the Corporate Debtor against the consideration for the time value of money or not - HELD THAT - It is pertinent to note that Section 7(1) clearly spells out that a Section 7 application can only be initiated only by a Financial Creditor either by itself or jointly. A perusal of the definition of expression Financial Creditor would show that it refers to a person to whom a financial debt is owed and includes even a person to whom such debt has been legally assigned or transferred to. The trigger for initiation of the corporate insolvency resolution process by such a Financial Creditor under Section 7 of IBC is the occurrence of a default by the Corporate Debtor above a prescribed threshold limit. Default in the IBC framework means the incidence of non-payment of debt in whole or in part when the debt has become due and payable, in law and in fact. Debt means a liability or obligation in respect of a claim which is due from any person and claim means a right to payment even if it is disputed. From a bare reading of Section 7 of IBC, it is amply clear that insolvency process under IBC can be triggered only by a Financial Creditor either singularly or jointly. The primary and fundamental basis for a creditor to be treated as a financial creditor for the purpose of Section 7 in Part II of the IBC requires that a financial debt is owed to that person in terms of Section 5(7) of IBC. Such a financial debt could cover any of the transactions outlined in Section 5(8) (a) to (i) of the IBC. That being so, the basic requirement of existence of financial debt being owed by the Corporate Debtor to the Financial Creditor has to be first satisfied and cannot be overlooked. Whether the Appellant had made any disbursement to the Corporate Debtor against the consideration for the time value of money? - HELD THAT - In the present facts of the case, it is an undisputed fact that the Corporate Debtor has neither admitted to owing a financial debt to the Appellant nor has the Appellant been able to successfully substantiate that he directly disbursed any sum of money against the consideration for time value of money to the Corporate Debtor - the Appellant has clearly failed to adduce evidence to prove the existence of financial debt qua the Corporate Debtor. In the absence of financial debt qua the Corporate Debtor, the Appellant cannot be said to be a financial creditor under Section 5(7) of IBC. There are no hesitation in holding that the Appellant does not meet the specific and distinct connotations required to be treated as a Financial Creditor qua the Corporate Debtor. Since the Appellant is not a Financial Creditor of the Corporate Debtor and the transactions in question are not in the nature of financial debt owed by the Corporate Debtor, there is no error in the judgment of the Adjudicating Authority that no case has been made out against the Corporate Debtor for initiation of CIRP. Thus, it is a settled proposition of law that a company is a legal personality entirely distinct from its directors. Once a company is incorporated, it becomes an artificial person and must be treated separately from its members. In the present factual matrix, the Respondent No.1-THPL is a corporate person in terms of Section 3(7) of IBC and therefore enjoys a legal entity separate from that of BKT and NT. From the juristic point of view, therefore, the rights, duties and liabilities of THPL are distinctive from those enjoyed, exercised or discharged by directors in their personal capacity. It is abundantly clear that the Appellant has not entered into any direct transactions with the Corporate Debtor at any stage - Given the fact that the Appellant has failed to establish that he had given any loan to the Corporate Debtor directly, it does not stand to reason for him to press for piercing the corporate veil to alleviate the burdens of his financial misadventure - the findings of the Adjudicating Authority are satisfying that the Section 7 application filed by the Appellant before it was not liable to be admitted. The Adjudicating Authority did not commit any error in rejecting the Section 7 application filed by the Appellant. The impugned order does not warrant any interference - Appeal dismissed.

Summary

Issues Involved:
1. Whether the application under Section 7 of the Insolvency and Bankruptcy Code (IBC) was maintainable.
2. Whether the transactions between the Appellant and the Respondents constituted a financial debt.
3. Whether the corporate veil should be lifted to treat the Appellant as a Financial Creditor.

Summary:

1. Maintainability of Section 7 Application:
The Appellant filed an appeal under Section 61 of the IBC against the dismissal of his application under Section 7 by the Adjudicating Authority. The Authority had dismissed the application on the grounds that the Appellant failed to prove that the money given to the Respondents constituted a financial debt owed by the Corporate Debtor.

2. Financial Debt:
The Appellant contended that he had provided a loan to the Corporate Debtor through intermediaries and that WhatsApp messages, SMS, and emails were admissible evidence of this financial debt. He also argued that payments of interest by the Respondents supported his claim. However, the Respondent's counsel argued that the money was transferred to personal accounts and not directly to the Corporate Debtor, thus not constituting a financial debt under Section 5(8) of the IBC. The Tribunal agreed with the Respondents, stating that the Appellant failed to provide evidence of a direct financial debt owed by the Corporate Debtor.

3. Corporate Veil:
The Appellant argued for piercing the corporate veil, claiming that the Respondents used their personal accounts as a façade for the Corporate Debtor. The Tribunal, however, held that the Appellant did not establish any direct transactions with the Corporate Debtor and that the transactions were limited to personal capacities. Therefore, there was no justification to pierce the corporate veil.

Conclusion:
The Tribunal concluded that the Appellant did not meet the criteria to be considered a Financial Creditor under Section 5(7) of the IBC. The transactions in question did not constitute a financial debt owed by the Corporate Debtor. The Tribunal upheld the Adjudicating Authority's decision to reject the Section 7 application and dismissed the appeal, allowing the Appellant to seek remedial action in other appropriate forums.