9911796707
TMI Blog2018 (9) TMI 1530X X X X Extracts X X X X X X X X Extracts X X X X ..... 694) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 22.08.2014 having its registered office at House No. 32/43, 3rd floor, West Punjabi Bagh, New Delhi. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. The applicants have proposed the name of Shri Subodh Gokhale, with registration number IBBI/IPA-002/IP-N00317/2017-2018/10922, having office at 1 samriddhi, A/48, Gokuldham, Goregaon East, Mumbai Maharashtra and email id [email protected]. A communication dated 05.02.2018 in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record. Shri Subodh Gokhale, has agreed to accept appointment as the IRP if an order admitting the present application is passed. There is a declaration made by him that no disciplinary proceedings are pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso placed on record copies of the following documents in support of the loan granted to the Respondent company and in support of the claimed financial debt: i. Certificate of incorporation of Corporate Debtor ii. Company Master Data of Corporate Debtor iii. Bank account details of Petitioner/Applicant iv. ITR of Corporate Debtor for 2015-16 v. ITR of Corporate Debtor for 2016-17 vi. Auditor's report dated 02.09.2017, of Corporate Debtor vii. Notice form 3 & 4 dated 03.01.2018, served upon the Corporate Debtor. viii. Delivery receipt dated 05.01.2018 for the notice by Indian Postal Services. 11. It is also the case of the applicants that since all requests for repayment of balance amount due and payable failed, the applicants issued demand notice on 03.01.2018 in Form 3 under rule 5 of the Rules and also a notice in Form 4 under Rule 5 of the Rules on 03.01.2018. 12. It is alleged that the notice was received by the Corporate Creditor. However, despite receipt of both the demand notices, the corporate debtor failed and neglected to repay the debt. 13. The precise submission of the applicant is that the respondent company has accepted and admitted the debt as refl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code, wherein only "Financial Creditor"/"Financial Creditors" can file an application. As per Section 7(1) of the Code an application could be maintained by a Financial Creditor either by itself or jointly with other Financial Creditors. Section 7 of the Code thus mandates that only the applicant "Financial Creditor" has to prove the default. In other words, even if there is a clear default, the application under Section 7 of the Code is not maintainable in case the applicant is not a financial creditor. Therefore, in order to maintain the present application filed under Section 7 of the Code for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor, the present applicants have to satisfy that they come within the definition of "Financial Creditor". 19. The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and 5 (8) of the Code, which are reproduced below. "5. In this part, unless the context otherwise requires, - (7) "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) "financial debt" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 21. Precisely "Financial debt" is a debt along with interest, if any, which is disbursed against consideration for time value of money. 22. In the present case admittedly, applicants issued notices both in Form 3 as well as in Form 4 under rule 5 of the Rules on 03.01.2018 claiming themselves as operational creditors. Secondly, neither any document has been placed on record pertaining to the loan nor there is any supporting evidence to establish applicable rate of interest to be paid on the said loan. Thirdly, the applicants have failed to prove that the loan was disbursed against consideration for time value of money, particularly when respondent company has affirmed that no interest has been paid nor payable at any point of time. 23. It is pertinent to refer here that the balance sheets of the respondent company reveal that as on 31.03.2015 loans taken from both the applicants stands at Rs. 13,00,000/- and Rs. 12,00,000/- respectively. Similarly the balance sheet of the respondent company as on 31.03.2016 reflects the same amount of Rs. 13,00,000/- and Rs. 12,00,000/- as due to both the applicants. The position as on 31.03.2017 also remains the same as per the balance sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interest and has given no undertaking to repay the loan with interest; the Appellants cannot claim to owe 'financial debt' from the 'Corporate Debtor' and thereby cannot be claimed to be a 'Financial Creditor' as defined under Section 5(7) & (8) of the Insolvency and Bankruptcy Code, 2016. 29. In the present case also, there is no document to show that the respondent company either accepted or undertook to repay the loan with interest. The applicant has failed to justify how without any provision of interest the debt can be termed as a financial debt. Once the claim made in the application does not pertain to 'disbursement against consideration for time value of money', the present claim will not come within the purview of 'Financial Debt' and consequently the applicants cannot be termed as 'Financial Creditor' in respect of the present claim in question. 30. Needless to say, that the onus to prove lies on the applicants to establish that 'interest' is payable on the loan amount as claimed in the present application. The burden of proof becomes more onerous particularly when the claim is disputed. It is reiterated that neither any document has been placed on record pertaining t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
