9911796707
TMI Blog2019 (10) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... ice S.J. Mukhopadhaya, Chairperson And Justice Kanthi Narahari, Member(Technical) For The Appellant : Mr. Darpan Wadhwa, Sr. Advocate along with Mr. Aseem Chaturvedi, Ms. Wamika Trehan, and Mr. Millind Sharma, Advocates For The Respondent : Mr. Aditya Verma, Mr. Shrey Patnaik, Mr. Jayant K. Mehta, Advocates JUDGMENT KANTHI NARAHARI, MEMBER(TECHNICAL) M/s Saregama India Limited Appellant filed the present appeal aggrieved by the order of the Adjudicating Authority (National Company Law Tribunal, Division Bench, Chennai) dated 14th February, 2019 whereby the Adjudicating Authority dismissed the application of the Appellant. 2. The Appellant filed application before the Adjudicating Authority (National Company Law Tribunal, Division Bench, Chennai) under Section 7 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as IBC ) against the Corporate Debtor - M/s Home Movie Makers Private Limited (Respondent herein) for initiation of Corporate Insolvency Resolution Process. 3. The Adjudicating Authority, after hearing the parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) available of the programme and in consideration of the same, the Appellant has to pay amount as agreed for availing the FCT to the Respondent in telecasting the serial produced by the Respondent. While doing so, the Appellant and the Respondent entered into another marketing agreement dated 09.12.2016 (page 69 of the Paper Book) as per the terms and conditions as mentioned therein specifically sale of FCT to the Appellant which was available to the Respondent. 9. The Appellant contended that in pursuance of the understanding between them, the Appellant paid a sum of ₹ 30,00,000/- by way of advance to the Respondent and the same has been communicated vide its letter dated. 31.1.2017. It is also contended that the said written understanding failed due to various and new arrangement for repayment of advance given by the Appellant to the tune more than ₹ 1 crore. The parties have exchanged various correspondences including e-mails. 10. The fact is that the Appellant in its letter dated 31.01.2017 addressed to the Respondent stated that as per the request made by the Respondent, they will pay an amount of ₹ 30 lakhs by way of advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir email dated 27.08.2018 (at page 107 of the Paper Book). Further the Respondent claimed that it reserved its right to recover the damages against the Appellant for flagrant breach of the marking agreement for the abject failure to market the FCT s available, thereby causing loss to the Respondent s business and breach in failure to make payment of the telecasting fee. 13. From the perusal of the document and notice issued by the Appellant in Form -3 dated 15.11.2018, the Appellant relied upon the Marketing Agreement dated 09.12.2016 and corresponding letters as mentioned therein. However, in Form-1, i.e., Application under section 7 of IBC, the Appellant relied upon the Marketing Agreement dated 28.09.2013 and 09.12.2016 and claimed an amount of ₹ 57,55,799/- which was shown as default. 14. To determine the issue whether the claim of the Appellant falls under the category of financial debt and whether the debt is due which has been disbursed against the consideration for Time Value of Money. As in depth perusal of the agreement dated 28.09.2013 entered between the Appellant and the Respondent wherefrom in Clause -5 of the said agreement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 8(1) of the IBC. After expiry of the period of 10 days after delivery of the notice or the invoice demanding payment under the above provision, if the Operational Creditor does not receive payment from the Corporate Debtor or notice of the dispute under Section 8(2), the Operational Creditor may file an Application before the Adjudicating Authority for initiating the Corporate Insolvency Resolution Process . While Section 7 of the IBC entitles the Financial Creditor to initiate Corporate Insolvency Resolution Process . 16. Now, we deal with the relevant provisions of law. Section 5(7) of the IBC defines as under: .. 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 Section 5(8) of the IBC is excerpted hereunder: ( 8) financial debt means a debt alognwith interest, if any, which is disbursed against the consideration for the time value of money and includes - ( a) Money borrowed against the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sh. Neeraj Bhatia Vs. Davinder Ahluwalia and others referred to Judgment of this Tribunal in the matter of Nikhil Mehta and Sons (HUF) Vs. AMR Infrastructure Ltd. Company Appeal (AT) (Insolvency) No. 07 of 2017 dealing with the similar issue held as under: 17. The first question arises for consideration is as to who is a Financial Creditor . Learned Adjudicating Authority, for determination of the aforesaid issue examined the definition provided in section 5(7) and 5(8) and in the impugned Judgement rightly observed: - 12. A perusal of definition of expression Financial Creditor would show that it refers to a person to whom a financial debt is owed and includes even a person to whom such debt has been legally assigned or transferred to. In order to understand the expression Financial Creditor , the requirements of expression financial debt have to be satisfied which is defined in Section 5(8) of the IBC. The opening words of the definition clause would indicate that a financial debt is a debt along with interest which is disbursed against the consideration for the time value of money and it may include any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are sometimes used as devices for raising money. In a transaction of this nature an entity may require liquidity against an asset and the financer in return sell it back by way of a forward contract. The difference between the two prices would imply the rate of return to the financer. (See Taxman s Law Relating to IBNC, 2016 by Vinod Kothari Sikha Bansal). 19. In Dr. B.V.S. Lakshmi vs. Geometrix Laser Solutions Private Limited - Company Appeal (AT) (Insolvency) No. 38 of 2017, this Appellate Tribunal having noticed the aforesaid provision by judgment dated 22nd December, 2017 held as follows: 29. For coming within the definition of Financial Debt as defined under sub-section (8) of Section 5, the Claimant is required to show that (i) there is a debt alongwith interest, if any, which has been disbursed and (ii) such disbursement has been made against the consideration for the time value of money . Thereby, if the Claimant claims to be Financial Creditor he will have to show that debt is due which he has disbursed against the consideration for the time value of money and that the borrower has raised the amount directly or thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
