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TMI Blog2020 (3) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ur Bench, Jaipur admitting the application under section 7 of Insolvency and Bankruptcy Code, 2016 (In short 'IBC'), the Shareholder of the Corporate Debtor filed the present appeal. 2. The First Respondent herein filed the application under section 7 of IBC before the Adjudicating Authority, Jaipur Bench, Jaipur for initiation of Corporate Insolvency Resolution Process (in short 'CIRP') against the Corporate Debtor- M/s Raj Buildhome Private Limited on the ground that the Corporate Debtor defaulted the loan granted to the Corporate Debtor to the extent of Rs. 41,90,000/-. BRIEF FACTS AND SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPECTIVE PARTIES: 3. The 1st Respondent herein i.e., the Financial Creditor, during the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thousand Six Hundred Thirty Four only and issued ICICI, Udaipur Cheque No. 012792 dated 01-Oct-16 to honour this obligation on 01-Oct-16 to "Second Party"' [Emphasis supplied] As per the above undertaking, the 1st Party accepts to pay to 2nd Party. In the preamble of the undertaking dated 09.02.2016, the first party is the Corporate Debtor i.e., M/s Raj Buildhome Private Limited and the 2nd party is Financial Creditor i.e., Mr. Khozim Yusuf Nagarwala, Smt. Shirin Y Nagarwala and Smt. Maleka K Nagarwala. Relying upon the above undertaking dated 09.02.2016, the Adjudicating Authority was of the view that there is an acceptance of the Financial Debt and that the Applicant (Financial Creditor) is a Financial Creditor taking into consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btor Company. The Appellant further contended that prior to admission of the Application i.e. on 03.05.2019, the Corporate Debtor had paid the entire debt as on 19.01.2019. 8. It is submitted that the Applicant has made a joint claim of Financial Debt and Operational Debt in the Application filed under section 7 of IBC whereas clubbing of alleged Financial and Operational Debt is not permissible under IBC. It appears that Applicant mixed claim towards loan in the nature of Financial Debt with fees in the nature of Operational Debt. From the Balance Sheet for the Financial Year 2014-15, it is seen that the amount of Rs. 41,90,000/- was reflected as Long Term Borrowing (at page 104 and at page 119 of the Paper Book). There is no denial by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been lodged against the Directors of the Corporate Debtor and they were arrested. 11. In its order dated 17.01.2019, Judicial Magistrate, FC, Court No. 2, Ahmednagar, recorded that a sum of Rs. 50 lakhs by way of Demand Draft has been deposited in the Court to pay the same to the Complainant i.e. Financial Creditor. The Appellant has produced a Chart (page 288-Vol. II of Paper Book) regarding details of all payments made. From the chart, the total amount paid is extracted hereunder. "DETAILS OF PAYMENT MADE Total amount paid is Rs. 1,50,17,700/- Date Amount DD No. Issuer Pay by to Pay to a. 22.12.2018 4190000/- 347033 Kotak Rajbuildhome to Khozim 19.01.2019 b. 28.12.2018 810000/- 347035 Kotak Rajbuil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued in the name of 1st Respondent /Financial Creditor and Rs. 8,10,000/- in the name of 2nd Joint Division Court, Ahmednagar, Rs. 41,90,000/- issued in the name of 2nd Joint Junior Division Court, Ahmednagar. Further, the Appellant also enclosed the photocopy of the Bank Statement at pages 292-297 showing the payments made to the Respondent/Applicant. 14. Record shows that the Payments have been made by the Appellant/Corporate Debtor prior to the admission of the Application i.e., on 03.05.2019. 15. Having made the payment prior to initiation of CIRP, we are of the view that the case of the Respondent/Applicant cannot be treated as a Financial debt and default, in view of no debt payable to the Financial Creditor. Even the Respondent/Appl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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