2021 (12) TMI 45 - AT - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT - The Respondent extended a loan facility for an amount of INR 5,50,00,000/- to SN Jee Build Well Pvt. Ltd. (Corporate Debtor) by entering into a Loan Agreement dated 02.08.2013 - It is also admitted fact that the Respondent through its advocate issued a legal notice to the Corporate Debtor on 25.10.2019 (at page 138 to 142 of the Appeal Paper Book) demanding the unpaid amount. Admittedly, neither any reply to the said notice nor any payment has been received by the Respondent. The Ld. Adjudicating Authority in para 24 of the impugned order rightly taken note of the fact and also the fact that the Forensic Audit Report, the Auditor has admitted this fact that the fund of ₹ 375 lakhs were received from the Indian Delco Private Limited and it is also admitted that out of that amount ₹ 150 lakhs were properly utilized in the Company. There is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order - Appeal dismissed.

Summary

Issues:
Admission of Corporate Insolvency Resolution Process under Section 7 of the Insolvency and Bankruptcy Code, 2016 based on loan default.

Detailed Analysis:
The Appeal was filed by the Appellant, a Suspended Director of a company, against the order admitting Corporate Insolvency Resolution Process (CIRP) against the company due to a loan default. The Respondent extended a loan facility to the company, and the Appellant argued that the alleged default was unauthorized and disputed. The Appellant claimed that the loan agreement was antedated, unauthorized, and the borrowing exceeded the company's limits under the Companies Act, 2013. The Appellant alleged fraud and collusion in obtaining the loan, challenging the validity of the debt. The Appellant contended that the Adjudicating Authority did not consider these facts while passing the order.

The Respondent, on the other hand, provided evidence of the loan agreement, disbursement of funds, and non-repayment by the company. The Respondent issued a legal notice demanding payment, which the company failed to comply with. The Respondent argued that the Appellant acknowledged the debt through various actions, including signing cheques and confirming outstanding balances. The Respondent also highlighted that the company's acknowledgment of the debt was recorded in the audited balance sheet. The Respondent refuted the Appellant's claims of fraud and collusion, presenting evidence of proper fund utilization by the company.

After considering the arguments and evidence presented by both parties, the Tribunal found that the loan agreement, disbursement, non-repayment, legal notice, and acknowledgment of debt by the company were established facts. The Tribunal noted that the Adjudicating Authority correctly considered the evidence, including a forensic audit report, and found no illegality in the order admitting CIRP. Therefore, the Tribunal affirmed the Adjudicating Authority's order, dismissing the Appeal and upholding the initiation of Corporate Insolvency Resolution Process against the company. The Tribunal directed the registry to publish the judgment on its website and provide a copy to the Adjudicating Authority promptly.