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TMI Blog2019 (2) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... itor extended credit facility to the Corporate Debtor and goods are supplied to the Corporate Debtor. M/S RIL is not directly extending any credit facility to the Corporate Debtor. M/S RIL will supply goods only on payment. Payment was being made by Financial Creditor in respect of purchase orders and goods are delivered to Corporate Debtor. The credit facility extended by Financial Creditor is subject to payment of interest. Money is paid to M/S RIL on behalf of Corporate Debtor against time value for money. It is proved that Petitioner is a Financial Creditor and that the debt due by Corporate Debtor is a Financial Debt. Petition is in order and as such Petition is liable to the admitted - Petition admitted - moratorium declared. - CP (IB) No. 315/7/HDB/2018 - - - Dated:- 19-2-2019 - Hon'ble Shri Ratakonda Murali, Member (Judicial) For Petitioner: Shri. V.K.Sajith Shri. Gaurav Verma Advocates. For Respondent: Shri K.Raji Reddy, Shri C.V.Narasimhma, and Shri D.V.A.S.Ravi Prasad, Advocates. ORDER Shri Ratakonda Murali, 1. This is a petition filed by M/s.Gowra Petrochem Private Limited, Financial Creditor herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an amount of ₹ 6,68,54,335/- is due and payable by the Corporate Debtor. 2.4 It is the case of Petitioner that the Corporate Debtor Company on various occasions requested the Financial creditor /Petitjoner herein for revising the payment schedule but it failed to comply with the commitments and defaulted in making payment in accordance with the agreed schedule. 2.5 It is averred the Petitioner abided by the terms of the credit agreement, paid the amounts covered by invoices to Reliance on behalf of the Corporate Debtor as a part of the credit facility extended by the Petitioner on the basis of Credit Agreement. 2.6 It is the case of Petitioner that Corporate Debtor has defaulted in terms of payment and thus prayed this Tribunal to admit the Petition filed under Section 7 of IBC, 2016. Reply/Counter filed by the Respondent: 3.1 The Corporate Debtor contends that Petitioner is not a Financial Creditor to the Corporate Debtor within the meaning of IBC, 2016 and as such the Petition is not maintainable. 3.2 The Corporate Debtor denies any financial assistance disbursed by the Petitioner as per Annexure-3 to the Petition s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. It is the case of Petitioner that since the credit arrangement under the Credit Agreement has the effect of a commercial borrowing, the amount due by the Corporate Debtor is a financial debt. Since the amount due to the Petitioner is a financial debt the Petitioner is a Financial Creditor of the Corporate Debtor. 4.3. It is the case of Petitioner that in terms of credit agreement entered with the Corporate Debtor, it placed all orders in favour of Reliance and thus Corporate Debtor is liable to make good the payments made to Reliance by Financial Creditor together with interest as per Clause 2 of the Credit Agreement. 4.4. It is further contended that the invoices annexed as Annexure4 of the Petitioner not only contained buyer's name but also the consignee's name i.e. the Petitioner herein. Further it is averred that whole arrangement was such that unless the Petitioner pays to Reliance, the Reliance was not obligated to supply the materials to Corporate Debtor. Thus, Financial Creditor paid all the invoices to Reliance on behalf of the Corporate Debtor as a part of the credit facility extended by the Petition on the basis of the Credit Agreement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced rate will be levied. Thus, Corporate Debtor became liable to pay the money which in fact is the money paid by the Financial Creditor to M/S RIL for supply of goods to the Corporate Debtor. 7. The question whether Petitioner is Financial Creditor and that Corporate Debtor owed financial debt to the Petitioner and if so, is there any default. If Petitioner is able to establish that debt payable by Corporate Debtor is a financial debt and it is a Financial Creditor and debt is committed default, then Petition is liable to be admitted. 8. When debt js to be called a financial debt it should satisfy two points:- A person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred. The debt along with interest, if any, is disbursement against the consideration for time value of money and includes any one or more mode of disbursed as mentioned in Section 5 (8)(a) to (i). If these two conditions are satisfied then it is a financial debt. To decide the issues involved whether there is material to come to conclusion that Petitioner is a Financial Creditor. Section 5 (7) defines financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iers (M/S RIL) invoice and 18% per annum if the payment beyond 30 days from the date of supply invoice to till date of payment credited to the account of Financial Creditor irrespective of the credit period allowed by the manufacturer/Supplier. 11. It is clear from the contents of the Agreement that Corporate Debtor wanted to extend credit facility for purchase of polymers from M/S RIL and agreed to pay interest for the credit extended by the Financial Creditor to it. The Financial Creditor agreed to extend credit facility to the Corporate Debtor subject to the guarantee furnished by Managing Director and Directors. The Corporate Debtor shall place all purchase orders in favour of M/S RIL orally or in writing to Financial Creditor. It is not in dispute Financial Creditor is del-credere agent of M/S RIL. All Purchase orders to be placed through Financial Creditor who undertakes to provide credit facility for the supply of goods to the Corporate Debtor and interest for 20-30 days from the date of supply is at 15% and beyond the said period, interest will be charged at 18%. It is strongly established that Financial Creditor extended credit facility to the Corporate Debtor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is document is prepared with reference to the invoices under which goods were delivered to Corporate Debtor. 14. The only contention raised by Corporate Debtor that it had paid money covered by the invoices for which there is no proof. The second contention is that Petitioner is not a Financial Creditor which is also not correct as documentary evidence support that Petitioner is a Financial Creditor and money was paid on behalf of Corporate Debtor to M/S RIL for supply of goods and credit facility was provided to the Corporate Debtor and money was payable with interest. Further, Corporate Debtor relied on Hon'ble NCLT, Principal Bench, New Delhi order in cp in the matter of M/S Cadillac Info-Tech Private Limited vs Hallow Infrastructure Private Ltd. The facts of the case is different from the present case. 15. So, in the light of above discussion it is proved that Petitioner is a Financial Creditor and that the debt due by Corporate Debtor is a Financial Debt. Petition is in order and as such Petition is liable to the admitted. The Financial Creditor suggested the name of IRP who filed Form-2. 16. Hence, the Adjudicating Authority admits this Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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