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TMI Blog2018 (8) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... ption but to set aside the impugned order dated 5th January, 2018. In effect, order (s), passed by the Adjudicating Authority appointing ‘Resolution Professional’, declaring moratorium, freezing of account, and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action taken by the ‘Resolution Professional’, including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The ‘Corporate Debtor’ (company) is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect. X X X X Extracts X X X X X X X X Extracts X X X X ..... ity when the loan has been advanced by my HUF. Similarly, at no point in time has the payment been made to me in my HUF when I have advanced the loan in my individual capacity. 5. I state that in my individual capacity, had advanced an amount of ₹ 50,00,000/-(Rupees fifty Lakhs Only) to the 3rd Respondent as Loan Agreement dated 19.08.2014. It was agreed that the 3rd Respondent would repay the loan as per the repayment schedule agreed under the said Loan Agreement dated 19.08.2014 along with interest @ 18% per annum. It was the understanding between the 3rd Respondent and I, that the interest would be calculated on the reducing balance method, based on the timelines agreed under the repayment schedule in the Loan Agreement dated 19.08.2014 and that the entire interest amount would be payable in advance. It was further agreed that the entire loan would be repaid on or before 28.06.2015. A copy of the Loan Agreement dated 19.08.2014 is produced herewith as Annexure 'R19'. I further state that as a security for the aforementioned loan, the 3rd Respondent had mortgaged the Flats bearing No. A-201, A-203 and A-404, along with three covered car parking, in the apartment complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 5,00,000/- was returned for the reason 'insufficient funds' and the cheque was returned to the 3rd Respondent and the said amount is still outstanding. The sum total of the payments made to the HUF and to Manisha A.Samat clearly shows that there is a default and that the 3rd Respondent Company owed a sum of ₹ 15,00,000/- (Rupees Fifteen Lakhs Only) (principal) to both the HUF as well as Manisha A.Samat." 6. The appellant has disputed the aforesaid stand taken by the respondents and brought to the notice of this Appellate Tribunal the following facts: - "4. It is submitted that Ajay Samat, Manisha Samat and Ajay G.Samat(HUF) herein have entered into a total of eight Agreements whereby amounts have been lent to Respondent No. 3 Company. It would be pertinent to note that some agreements have been entered into individually by Manisha Samat; Ajay Samat; Ajay Samat (HUF). Similarly there are some Agreements wherein amounts have been lent collectively by the aforesaid parties. Further there are some Agreements whereby loan amount has been extended by the aforesaid parties with a third person, namely Geeta Khubani. It would be pertinent to note all the Agreements entere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndred Twenty Five). Therefore the Respondent No. 3 Company has repaid an amount of ₹ 54,777,625 (Rupees Five Crores Fourthy Seven Lakhs Seventy Seven Thousand Six Hundred Twenty Five) to Ajay Samat; Manisha Samat and Ajay Gopaldas Samat (HUF). It is reiterated that the aforesaid repayment took place over a period of 2013-2015 simultaneously for the eight Loan Agreements entered into between the parties. As there were multiple Agreements entered into by different entities, the repayment was being done on account as per verbal instructions issued by Ajay Samat from time to time." 8. Copies of the agreements and details of payments have been enclosed with the affidavit. 9. The Hon'ble Supreme Court in "Innoventive Industries Ltd. v. ICICI Bank in 2017 SCC SC 1025." while dealing with such issue held as follows: "28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the Explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor - it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case, we find that there are eight agreements reached between the respondents 'financial creditors' and the appellant. Detail of payments made by appellant from time to time has been mentioned in the affidavit and noticed above has not been disputed by the respondents. There appears to be a dispute about claim made by the respondents. While according to respondents the amount pursuant to a particular agreement (Say Agreement-A) has not been paid, according to corporate debtor, the amount detailed above is paid against such agreement (Agreement-A). The dates on which payment of more than Rupees Five crore has been made in favour of one or other respondent from time to time is not in dispute. What is in dispute is the debt as claimed, which is not clear as to whether such amount is payable pursuant to such agreement. Thus, there being a dispute about the claim arising out of a particular agreement, and as the respondents have not made it clear that as to against which agreement Rupees Five Crore has been adjusted, we are of the view that it was not a fit case for initiation of corporate insolvency resolution process under section 7, and parties should have been allowed to move ..... X X X X Extracts X X X X X X X X Extracts X X X X
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