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2021 (8) TMI 171 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Financial Debt or not - HELD THAT - Certain essential conditions are required to be satisfied by a Financial Creditor seeking to invoke the provisions of CIRP as against the Corporate Debtor. Following essential conditions are required to be satisfied by a Financial Creditor - (i) There must be disbursal of loan amount, (ii) Such disbursal should be made for a consideration for time value of money, and When the debt (Whole or any part or instalment) become due and payable and is not paid by the Corporate Debtor means committed default. In the present case, it is an admitted fact that financial Creditor transferred ₹ 6.10 Crs. through RTGS between 16.02.2017 to 22.02.2017 to the Corporate Debtor s bank account. This fact is corroborated by the bank entries filed by the Financial Creditor and the Corporate Debtor has not denied that the Corporate Debtor has not received such amount - the aforesaid amount has been disbursed by the Financial Creditor to the Corporate Debtor. However, there is no written agreement between the parties to show that the disbursement of such amount is a loan transaction. Whether such amount is disbursed for a consideration for time value of money? - HELD THAT - The Financial Contract as per the Rule 3(1) (d) is must between the corporate Debtor and the Financial Creditor for setting out the terms of a Financial Debt including the tenure of the Debt, interest payable and the date of repayment. In the absence of such Financial Contract, the Financial Creditor has failed to satisfy that when the debt and interest become due and payable. Whether the Corporate Debtor failed to pay (Whole or any part or instalment of the debt) when the debt become due and payable? - HELD THAT - Financial Creditor has not filed any writing to show that when the debt become due and payable. As per the Financial Creditor the debt in question is payable on demand. From the notice and the Application, it is not clear that on which date the demand was made and the loan and interest become due and payable - Section 7 (3) (a) of the IBC, provides that the Financial Creditor shall along with the Application is a required to furnish, a record of default recorded with the information utility or such other record or evidence of default as may be specified. The Financial Creditor has not filed any evidence of default along with the application under section 7 of IBC. - Respondent No. 1 (Financial Creditor) failed to establish when the debt become due and payable and the Corporate Debtor has committed default. The IBC recognizes that for the success of Insolvency regime the real nature of transaction has to be unearthed in order to prevent any person from taking undue benefit of its provisions to the detriment of the rights of legitimate creditors. It means, while admitting the Application under Section 7 of the IBC, it is the duty of the Adjudicating Authority to investigate the real nature of the transaction in order to prevent any person from taking undue benefit of its provisions to the detriment of the rights of legitimate creditors - the Adjudicating Authority is obliged to investigate the nature of the transaction and should be very cautious in admitting the Application in order to prevent taking undue benefit of provisions of IBC to detriment of the rights of legitimate creditors as well as to protect the Corporate Debtor from being dragged into CIRP with malafide. Thus, Ld. Adjudicating Authority has erroneously admitted the Application under Section 7 of the IBC, whereas, the Financial Creditor has failed to establish that the transaction in question is a Financial Debt and due and payable and the Corporate Debtor has committed default - orders passed by the Adjudicating Authority initiating CIRP against the Corporate Debtor and appointing IRP and all other orders pursuant to impugned order and actions are declared illegal and are set aside.
Issues Involved:
1. Whether the transaction in question is a Financial Debt? Issue-wise Detailed Analysis: 1. Whether the transaction in question is a Financial Debt? The Appellant, an ex-director of the Corporate Debtor, challenged the order admitting the Financial Creditor’s Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) and initiating Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor. Arguments by Appellant: - The Financial Creditor did not produce any loan agreement or instrument with its Application under Section 7 of the IBC. - There were no pleadings regarding the basic terms of the alleged Financial Contract or Financial Debt, including the date of repayment, applicable interest, and date of default. - The Financial Creditor failed to establish that the amount shown was a Financial Debt as per Sections 5(7) and 5(8) of the IBC. - The transaction cannot be termed as Financial Debt in the absence of a written agreement, as required under clause 5 of part (v) of Form I and Rule 3(1)(d) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. - Previous judgments were cited to support the argument that mere payment of interest and deduction of TDS cannot impose liability on the Corporate Debtor. - The demand notice indicated regular business transactions, not a loan, implying the transaction was in the normal course of business. Arguments by Respondent (Financial Creditor): - The Financial Creditor is a Non-Banking Financial Company (NBFC) and, as per Section 10 of the Contract Act, oral agreements are valid and enforceable. - Written agreements are not required for NBFCs under Section 186(11) of the Companies Act, 2013. - The Financial Creditor provided banking entries, which were not disputed by the Corporate Debtor. - The Corporate Debtor paid interest and deducted TDS, indicating the loan was disbursed for the time value of money. - Judgments from various courts were cited to support the validity of the Financial Debt. Tribunal’s Analysis: - Essential conditions for a Financial Debt under Sections 5(7) and 5(8) of the IBC include disbursal of loan amount, consideration for time value of money, and default by the Corporate Debtor. - The Financial Creditor transferred ?6.10 Crs. to the Corporate Debtor’s bank account, corroborated by bank entries, confirming the disbursal. - Payment of interest and deduction of TDS indicated consideration for time value of money. - However, the absence of a written agreement and failure to specify terms of the loan, such as tenure, interest payable, and repayment date, meant the Financial Creditor could not establish the transaction as a Financial Debt. - The Financial Creditor did not provide evidence of default as required under Section 7(3)(a) of the IBC. - The Tribunal emphasized the need to investigate the real nature of the transaction to prevent misuse of IBC provisions, referencing judgments from the Supreme Court. Conclusion: - The Adjudicating Authority erroneously admitted the Application under Section 7 of the IBC. - The Financial Creditor failed to establish the transaction as a Financial Debt and the default by the Corporate Debtor. - The order initiating CIRP against the Corporate Debtor and appointing an Insolvency Resolution Professional (IRP) was set aside. - The Corporate Debtor was released from CIRP and allowed to function independently. - The Adjudicating Authority was directed to fix the fees of IRP/RP/Liquidator, with payment regulated as per IBC provisions. The Appeal was allowed, and all orders pursuant to the impugned order were declared illegal and set aside. The Corporate Debtor was released from the rigour of law and allowed to function independently.
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