9911796707
TMI Blog2017 (8) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... olvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 for initiating Insolvency Resolution Process against the Corporate Debtor Ellora Paper Mills Limited. 2. The Petitioner states that on 8.9.2010, a Loan Agreement was entered into between the parties herein wherein the Petitioner agrees to extend and grant financial assistance to the Respondent Corporate Debtor up to a sum of ₹ 3,42,70,000/- on fulfilment of conditions precedent mentioned in the Agreement. The Agreement provides that the Petitioner shall disburse the loan either in single disbursement or in tranches, the borrower shall arrange to create charge in favour of the lender by way of pledge of 2,98,000 Nos. of equity shares of the Respondent Company aggregating to 14.9% of the fully paid equity capital of the Respondent held by Mr. Sudhir Goenka (HUF), the loan carries an interest of 12% per annum, loan shall be free of interest for a period of four months from the date of disbursement and thereafter, the interest shall become due and payable on the last day of each month, and the loan shall be repaid to the lender after four months, within 15 days of demand from the date of last disbursemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has suppressed material facts; (c) The Applicant cannot be termed as Financial Creditor as envisaged under Section 7 of the Code. (d) The Applicant have grossly erred in filing the Application. 6. The loan agreement dated 08.09.2010 provides that the loan amount has to be repaid to the Lender after 4 months, within 15 days of the demand from the date of last disbursement. The last disbursement was made on 11.11.2010, hence the amount ought to have been repayable on 11.03.2011. This application is filed on 19.04.2017 and hence the claim is time barred and the Application ought to be dismissed on this ground. This is the contention of the Respondent. For this, the Counsel for the Applicant states that the Respondent doesn't dispute the factum of disbursal of loan amount contends that Article 19 and 21 of the Limitation Act, 1963 which makes a distinction for the money payable for money lent and money lent under an agreement that itself be payable on demand does not apply to this case, however. Article 113, being a residuary section applies to this case since the loan is payable within 15 days from the date of demand, thus making the period of limitation run from 15th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent offered funds towards repair of plant machinery which were to be adjusted towards the amount payable by Abhijeet Group towards acquisition cost, loan agreement was entered into between the Applicant and Respondent on 04.08.2010, there was an understanding between the parries that the loan amount was not to be repaid but was to be adjusted against the acquisition cost payable by Abhijeet Group, therefore, the Applicant not even once sought the repayment of the loan for several years after the due date of payment, with effect from 2010 the operations of the Respondent company were managed by executives of the Abhijeet Group pending completion of acquisition formalities, during the period between September 2010 to August 2013 Abhijeet Group infused funds in the Respondent's plant through the Applicant, the Respondent company suffered unsustainable operational losses under the Abhijeet Group's management, Abhijeet Group when unable to run the operations of the Respondent's company in profitable manner informed the Respondent that they are no longer interested in acquiring the stakes in the Respondent Company and wants to handover the operations back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion also fails. 9. The fourth contention of the Corporate Debtor is that part V of Form 1 filed along with the application is not in accordance with Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 since a copy of certificate from banker under Section 2A of the Bankers' Books Evidence Act 1891 is not enclosed. In this regard, it is to be noted that Section 7(3)(a) of the Code provides that the Financial Creditor shall along with the Application furnishes record of the default recorded with the information utility or such other record or evidence of default as may be specified. The Code nowhere provides that certificate under Bankers' Books Evidence Act 1891 shall be compulsorily attached to the Application. Since the Applicant substantially complied with the provisions of the Code by filing the loan agreement, the statements of account of the Corporate Debtor and Balance Sheet of the Corporate Debtor which clearly shows that amount is owed to the Financial Creditor, this objection of the Corporate Debtor is unsustainable. Further it is not the case of the Corporate Debtor that they have not received the loan amount their contention is the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
