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TMI Blog2017 (2) TMI 1391X X X X Extracts X X X X X X X X Extracts X X X X ..... he contrary the Respondent No. 1-Company have been paying interest @ 12 % to the petitioner company. The argument with regard to written agreement for advancing loan is also devoid of merit once it is accepted that the amount has been received and interest thereon has been paid at the rate of 12 %. We are also unable to appreciate that the confirmation of accounts on 1.4.2016 by one Mr. Neeraj Sharma under the seal of R-I Company is liable to be ignored on the ground that he was not authorised to issue such certificate. The defence of the Respondent No. 1 Company is wholly illusory and we have no hesitation to reject the same. - Petition admitted. - C.P (IB)-09(PB)2017 - - - Dated:- 23-2-2017 - M. M. Kumaf And Sh. R.Varadharajn, JJ. ORDER The petitioner M/S Tomorrow Sales Agency Pvt. Ltd. is a non-banking financial company and is duly registered as such on 3.11.2009 by the RBI. A copy of the certificate of registration issued by RBI has been placed on record (P-5). It claims to be a 'Financial Creditor' within the meaning of section 7 of the Insolvency and Bankruptcy Code 2016 (for brevity IBC). It has also been claimed that when Respondent No. I company approa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20.01.2015 Rs.1,00,00,000/- (Rs. One Crore Only) 00055 HDFCR520150120585140 17 Drawn on HDFC Bank, Stephen House Branch, Kolkata 22.01.2015 Rs.1,00,00,000/- (Rs. One Crore Only) 00056 HDFCR520150122586024 42 Drawn on HDFC Bank, Stephen House Branch, Kolkata 2. A copy of the statement of account has also been placed on record. According to the averment made in the petition the loan amount of 15 crores and the accrued interest at the rate of 12 % has been duly admitted, acknowledged and confirmed by the Respondent No. I-Company through communication for confirmation of account dated I .4.2016 for the financial year 2015-2016. The aforesaid confirmation was delivered to the petitioner by the Respondent No. 1 Company after affixing its stamp and signature of one Mr. Neeraj Sharma. A copy of the same has been placed on record (P-9).The interest amount due from 31.3.2016 to 31.1.2017 has also been calculated and placed on record (p10).Thus the petitioner claims that Respondent No. I-Company is in default of total amount of and the defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent No. I Company as it has defaulted in making the re-payment of the huge loan amount of admitted liability. According to the learned counsel the petitioner is squarely covered by expression 'Financial Creditor' as used in section 7 read with section 5(7) of the IBC and likewise the loan advanced by it has to be regarded as a financial debt in terms of the provisions of Section 5(8) of the IBC. Learned counsel has placed reliance on the judgement of this Bench rendered in the case of Nikhil Mehta and Sons (HUF) Ors. v. M/s AMR Infrastructure Ltd. (C.P. No.(ISB)- 03(PB)/2017.) decided on 23.1.2017. Learned counsel has placed reliance on paras 11 12 of the judgment. 7. Mr. Abhinav Vasishat learned senior counsel has vehemently submitted that there is no written agreement between the parties so as to warrant triggering of any insolvency process. In that regard reliance has been placed on the various advisories issued by the RBI. According to the learned counsel it was not a loan. In fact the amount was advanced payment made to the Respondent No. 1 Company to purchase share. Accordingly shares have been purchased with the total sum of the advance paid to the R-I Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l transaction as postulated by section 5(8) is its consideration for time value of money. In other words, the legislature has included such financial transactions in the definition of Financial debt' which are usually for a sum of money received today to be paid for over a period of time in a single or series of payments in future. It may also be a sum of money invested today to be repaid over a period of time in a single or series of instalments to be paid in future. In Black's Law Dictionary (9th edition) the expression Time Value 'has been defined to mean the price associated with the length of time that an investor must wait until an investment matures or the related income is eamed. In both the cases, the inflow and outflows are distanced by time and there is a compensation for time value of money. It is significant to notice that in order to satisfy the requirement of this provision, the financial transaction should be in the nature of debt and no equity has been implied by the opening words of Section 5(8) of the IBC.. 9. We are also satisfied that Respondent No. I- Company has committed default in respect of financial debt owed to the petitioner/ financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) There shall be interim order prohibiting Respondent No.l Company from transferring, encumbering, alienating or disposing of any of its assets or legal right or beneficial interest therein. e) Respondent No. I-Company is restrained from instituting any suit or continuing with any pending suits or/and any proceedings against the Respondent No. I Company. The execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority shall remain stayed. It shall be the duty of the interim insolvency professional to carry out these directions at the earliest; f) There shall be prohibition of any action to foreclose, recover or enforce any security interest created by Respondent No. 1 Company in respect Of its property, including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; g) There shall be restrained order for recovery of any property by an owner or lessor where such property is occupied by, or in the possession of the Respondent No. I- company. 13. We wish to make it clear that supply of goods and services to the Respondent No. I Company shall not be te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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