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TMI Blog2018 (9) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... meeting convened on the 20th March, 2018 and that the financial creditor discloses an amount of Rs. 5 Lakhs given to the corporate debtor as a loan and that Rs. 5 Lakhs is the debt due with Rs. 1,17,869.86 as interest @ 12% per annum upto March, 2018. A tabulation is annexed with the application showing the date of default as Annexure I : Exhibit B. To substantiate the contention of the applicant that the corporate debtor has been given a loan of Rs. 5 Lakhs produced Bank Statement of the financial creditor evidencing the loan amount granted to the corporate debtor as Annexure I : Exhibit C. So also produced a copy of the Ledger Account for the period 01/04/2012 to 31/03/2013 of the financial creditor in the books of the corporate debtor and annexed as Annexure I : Exhibit D. So, also the applicant copy of certificate from the statutory auditor of the financial creditor evidencing amount due from the corporate debtor, which is annexed as Annexure I : Exhibit G. (b) In addition to the said contentions the applicant/financial creditor further contends that there was an entire partition of the estate of Sri Jagat Singh Chopra, a director of the corporate debtor and his two sons (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Counsel appearing on the side of the applicant/financial creditor as well as Ld. Pr. CS appearing on the side of the respondent/corporate debtor. 5. Upon hearing the arguments and on perusal of the records the points that arises for consideration are the following:- (i) Whether the application is not maintainable as alleged by the respondent? (ii) Whether there is default in repayment of the loan as alleged? (iii) Reliefs and costs. 6. Point No. 1 (a) This is an unusual case. The application was filed by the financial creditor, namely, Freya Shipping Agencies Private Limited as against the corporate debtor, namely, M. L Chopra Shipping Private Limited, which were originally belongs to one Shri Jagat Singh Chopra father of Shri Raj Singh Chopra and Shri Vikram Singh Chopra. On 21/02/2016 there was a partition in the family of the applicant company whereby as per meditation, the assets, business, residential house, commercial properties, cash money and everything belonging to the family were partitioned. The applicant/financial creditor company has been allotted to Shri Raj Singh Chopra and the respondent/corporate debtor company has been allotted to Shri Vikram Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f EoGM was illegal then the Board of Directors who has allegedly signed in the meeting in which the authorisation has been given to the present director who has filed the application will be automatically nullified. Unless and until the legality of convenemeant of meeting of board of directors of applicant company is held illegal the resolution produced on the side of the applicant is liable to be accepted as valid. (f) At this juncture the Ld. Pr. CS on the strength of an order of the Hon'ble High Court at Calcutta in E.C. No. 281 of 2017, (Annexure 3) submits that the application is not maintainable as there is an order of status quo with regard to the demand if any to be made by the applicant in a case of this nature. Annexure 3 was passed by the Hon'ble High Court at Calcutta in an Execution Petition filed by Shri Jagat Singh Chopra, the father of Shri Raj Singh Chopra and Shri Raj Singh Chopra is the respondent in the above said Execution Petition in which the Hon'ble Calcutta High Court by giving certain directions to the petitioner directed "The parties to the proceedings shall maintain status quo with regaro to the business, properties and assets in their possession." ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epayment is not liable to be honoured by the corporate debtor. The default is defined under section 3(12) of the Code. It read as follows:- '3(12) - "default" means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not repaid by the debtor or the corporate debtor, as the case may be;" (b) So default is a failure to meet the legal obligations of a loan when a debtor fails to make payment, which has reached maturity. Here, in this case the loan allegedly availed by the corporate debtor has not reached its maturity because the corporate debtor has no legal obligation to repay the amount as claimed by the financial creditor admitting that there is no loan agreement or there is any financial contract. According to Ld. Counsel for the applicant it was an oral loan and thereby financial creditor did not claim interest. However, a screening of the documents produced on the side of the financial creditor it is understood that the financial creditor started to issue letters claiming interest on loan of Rs. 5 Lakhs (Rupees Five Lakhs) given to the corporate debtor @ 12% per annum. Though there is demand for interest neit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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