2022 (11) TMI 159 - AT - Insolvency and Bankruptcy

CIRP - scope of Financial Creditor - decree holder come within the definition of Financial Creditor or not - HELD THAT - The Adjudicating Authority has not considered the amount advanced by the Appellant to the Respondent as financial debt particularly because in its opinion the advanced amounts do not involve a time value of money. The two loans agreements in question make it clear that the loans are interest bearing and the interest rate is also clearly specified in the respective loan agreements. The time period of the loans are also specified in the loan agreements and security towards timely repayment of loan has also been specified in clause 3 of both the loan agreements. Further clause 5 of both the loan agreements make it clear that the borrower shall execute post-dated cheques for repayment in favour of lenders. All these features of the two loan agreements very clearly show that the amounts advanced by the Appellant to Respondent are in the nature of financial debt which carry time value of money - It appears that the interest rates mentioned in loan agreements have not been noticed by the Adjudicating Authority and the interest rate of 24% p.a., which is included in the decree by Hon ble Delhi High Court, has been taken as the first instance when interest was levied on the amount of debt. The jural relationship between the parties is also clearly established in the loan agreements and thus the amounts advanced by the Appellant are covered in the definition of financial debt under sub-section (8) of section 5 of the IBC. The decision in Dena Bank 2021 (8) TMI 315 - SUPREME COURT makes it clear that the judgment or decree of money in favour of the financial creditor passed by DRT or any other tribunal or court would give rise to a fresh cause of action for the financial creditor, to initiate proceedings under section of the IBC. In the present case, the judgment-decree dated 11.1.2018 of the Hon ble High Court of Delhi in favour of Appellant thus provides a fresh cause of action to the Appellant to move application under section7 of IBC. The loan agreements also establish the jural relationship between the Appellant and Respondent. The Adjudicating Authority has erred grossly by not considering that the two loan agreements and the features therein are in fact relating to financial debts which are due and payable to the Appellant by the Respondent. As a result, we set aside the Impugned Order and direct admission of the section 7 application. The matter is sent to the Adjudicating Authority for passing necessary orders under the IBC consequent to the admission of section 7 application.

Summary

Issues Involved:
1. Whether the appellant qualifies as a 'financial creditor' under the Insolvency and Bankruptcy Code (IBC).
2. Whether the debt in question qualifies as 'financial debt' under the IBC.
3. The applicability of the judgment-decree passed by the Hon'ble Delhi High Court as a fresh cause of action under Section 7 of the IBC.
4. The interpretation and application of the Supreme Court's judgment in the case of Dena Bank vs. C. Shivakumar Reddy.

Issue-wise Detailed Analysis:

1. Qualification as a 'Financial Creditor':
The appellant argued that he provided loans to the respondent through two separate loan agreements dated 24.2.2010 and 31.3.2010, amounting to Rs. 2.50 crores and Rs. 2 crores respectively, each carrying interest and having a specified repayment period. The appellant claimed that these agreements established a jural relationship of financial creditor and corporate debtor between the parties. The respondent contended that the loans were manipulated in the appellant's books and that the judgment-decree obtained was based on misrepresentation. The Adjudicating Authority initially dismissed the application, stating that the appellant did not qualify as a financial creditor as the loans did not involve the time value of money.

2. Qualification as 'Financial Debt':
The appellant maintained that the loans were interest-bearing and thus constituted financial debt under the IBC. The Adjudicating Authority, however, found that the appellant failed to provide evidence that the loans involved the time value of money. The Tribunal examined the loan agreements, which clearly specified the amounts, interest rates, and repayment periods, concluding that the loans indeed involved the time value of money and thus qualified as financial debt.

3. Fresh Cause of Action under Section 7 of the IBC:
The appellant argued that the judgment-decree dated 11.1.2018 from the Hon'ble Delhi High Court, which decreed a sum of Rs. 4,38,00,617 along with interest at 24% p.a., provided a fresh cause of action for filing the Section 7 application under the IBC. The Tribunal agreed, referencing the Supreme Court's judgment in Dena Bank vs. C. Shivakumar Reddy, which held that a judgment or decree for money in favor of a financial creditor gives rise to a fresh cause of action for initiating proceedings under Section 7 of the IBC.

4. Interpretation and Application of the Supreme Court's Judgment in Dena Bank vs. C. Shivakumar Reddy:
The appellant cited the Supreme Court's judgment in Dena Bank, which states that a judgment or decree for money provides a fresh cause of action for initiating CIRP under Section 7 of the IBC. The Tribunal found that the Adjudicating Authority misinterpreted this judgment by not recognizing the appellant as a financial creditor and not considering the decree as a fresh cause of action. The Tribunal upheld the appellant's interpretation, confirming that the decree provided a fresh cause of action within the limitation period.

Conclusion:
The Tribunal concluded that the Adjudicating Authority erred in not recognizing the appellant as a financial creditor and the loans as financial debt. The judgment-decree from the Hon'ble Delhi High Court provided a fresh cause of action under Section 7 of the IBC. Consequently, the Tribunal set aside the Impugned Order and directed the Adjudicating Authority to admit the Section 7 application and pass necessary orders under the IBC within four weeks. There was no order as to costs.