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TMI Blog2019 (11) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... d presently is having a nominal share capital of Rs. 10,00,000/- and the paid up share capital of an Rs. 7,98,500/-The situation of the registered office is stated to be 79, Paschimi Marg Vasant Vihar, South West Delhi-110057 which address it is seen is reflected in the Master Data of the CD as maintained with the MCA website and marked as Annexure-2 to the Petition save South West Delhi which is not considered material Part-III of the Petition proposes one Mr. Abhishek Anand, as the Interim Resolution Professional (IRP) having Registration No. IBBI/IPA-002/IP-N00038/2016-17/10077. In Part-IV of the Petition the financial debt disbursed to the CD in various tranches between March 10, 2014 till March 14, 2016 is stated to be in a sum of Rs. 3,45,00,000/- and the total interest accrued is claimed to be in a sum of Rs. 1,65,41,072/-. After deduction of TDS, a sum of Rs. 11,83,133/- is claimed as the interest payable and the aggregate sum claimed is in a sum of Rs. 5,10,41,072/-. The transaction under which the above claim is stated to have arisen is claimed to be by way of loan transactions which are repayable on demand along with interest as disclosed by way of tabulation in the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the applicant's desire to make equity investments in the Respondent company. * No further interest or any other form of consideration for time value of money, was to accrue on the Outstanding amount from that day. * It was agreed that the additional funds, in the sum of Rs. 2.65 crores shall be infused within a period of 18 months from the date of the MOU, and in accordance therewith, the applicant provided cheques to the Respondent company with instructions for the respondent company to only encash the cheques on receipt of written consent from the applicant. * The respondent company was further vested with the right to forfeit the outstanding amount and claim indemnity for any losses, in the event the applicant committed a breach of the terms of the MOU, * The said period expired on September 30, 2018 and the applicant failed to infuse the amount of Rs. 2,65,00,000/- in the respondent company thereby breaching the MOU. It is reiterated that the right to make equity investment had been exclusively offered to the applicant by the Respondent company. Furthermore, the applicant had been given the right to seek indemnification and claim interest from the respondent compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Sole Arbitrator on March 12, 2019, thereby adhering to the terms of the MOU. * In the entire application nowhere the FC had mentioned about the loan agreement or the MOU executed between the parties. 6. The Petitioner has filed a rejoinder dated 29.03.2019 in which following things had been stated: * The FC denies the existence of the purported loan agreement dated March 10, 2014 and the false and fabricated MOU dated April 3, 2017, the FC states that the said documents are antedated, false and fabricated made in collusion with Mr. D.K. Aggarwal, one of the directors of the FC. * FC stated that CD had omitted to make reference to true and correct facts such as the FC disbursed an amount of Rs. 3,45,00,000/- along with the interest amounting to Rs. 1,65,41,072/- as on December 25, 2018 and in relation to this loan, CD had paid interest and deposited the tax deducted at source in favour of the FC. * The CD as an afterthought, in order to take a false alibi so as to create a frivolous defence to the CIRP, sent a notice dated January 18, 2019 to the FC for referral of dispute to arbitration. * FC Counsel in response to the e-mail dated January 28, 2019 sent i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance therewith, the applicant provided cheques to the Respondent company with instructions for the respondent company to only encash the cheques on receipt of written consent from the applicant. The respondent company was further vested with the right to forfeit the outstanding amount and claim indemnity for any losses, in the event the applicant committed a breach of the terms of the MOU. The said period expired on September 30, 2018 and the applicant failed to infuse the amount of Rs. 2,65,00,000/- in the respondent company thereby breaching the MOU, It is reiterated that the right to make equity Investment had been exclusively offered to the applicant by the Respondent company. Furthermore, the applicant had been given the right to seek indemnification and claim interest from the respondent company, if the respondent company issued equity shares to any third party. The respondent company also followed up repeatedly with the applicant in order to take written consent for encashment of cheques given by the applicant to the respondent company in respect of the equity investment, but all efforts made by the respondent company went in vain. As per the terms of MOU, the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 7 of IBC and for initiation of CIRP as against the CD, which are to the following effect: i) There must be disbursal of loan amount; ii) Such disbursal should be made against the consideration for time value of money; and (iii) A default should have arisen either in the payment of interest or in the payment of principal amount or both on the part of the CD. 14. All the above conditions at the very least are required to be cumulatively satisfied, as it is to be seen that this Petition, prima facie, is initiated by the Petitioner as an FC and it is required to satisfy this Tribunal with the averments and documents backing such pleadings. Documents which are required to be submitted to substantiate a loan must be in the nature of a 'financial contract' as defined under clause (d) sub-section 1 Insolvency and Bankruptcy (Application to Adjudicating Authority), Rules, 2016 demonstrating without ambiguity at least the amount disbursed as loan/debt, the tenure of debt, interest payable and conditions of repayment, essentially. In effect, the above aspect of the production of a 'financial contract' was also dealt with by this Tribunal vide Para Nos. 10 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... templated under Section 3(12) of IBC,2016 which part also we are not in a position to accept in the absence of a 'Financial Contract'. 15. Reference to the provisions of the Companies Act, 2013 it is seen provides for certain essential procedure to be followed by the Company granting a loan under the provisions of Section 186 of the said Act. Particular reference to Section 186(5) of the Act which reads as follows: No investment shall be made or loan or guarantee or security given by the company unless the resolution sanctioning it is passed at a meeting of the Board with the consent of all the directors present at the meeting and the prior approval of the public financial institution concerned where any term loan is subsisting, is obtained: Provided that prior approval of a public financial institution shall not be required where the aggregate of the loans and investments so far made, the amount for which guarantee or security so far provided to or in all other bodies corporate, along with the investments, loans, guarantee or security proposed to be made or given does not exceed the limit as specified in sub-section (2), and there is no default in repayment of loan in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or given or whose securities have been acqired(Listed/Unlisted entities) Amount of loan/security/acquisition/guarantee Time period for which it is made/given (1) (2) (3) (4) (5) Purpose of loan/acquisition/guarantee/security % of loan/acquisition/exposure on guarantee/security provided to the paid up capital, free reserves and securities premium account and % of free reserves and securities premium Date of passing Board resolution Date of passing special resolution, if required For loans Rate of interest Date of Maturity (6) (7) (8) (9) (10) (11) For acquisitions Number and kind of securities. Nominal value and paid up value Cost of acquisition(in- case of securities how the purchased price was arrived at) Date of selling of investment Selling price (how the price was arrived at) Signatures and Remarks (12) (13) (14) (15) (16) (17) Signature: MD/Director/Secretary/Whole time Director. Place: Date: Thus while the production of "Financial Contract" prima facie establishes the essential agreement arrived at between the parties including its tenure and repayment period, the same can be corroborated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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