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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 ..... to the Financial Creditor. Even the Respondent/Applicant did not deny the receipt of the aforesaid amount of ₹ 1,50,17,770/-. Whilst it is stated that the said amount has not been paid towards their debt but it has paid because of criminal cases filed against Directors of Corporate Debtor Company. The Corporate Debtor is released from rigour of 'Corporate Insolvency Resolution Process - Appeal allowed. - Company Appeal (At) (Insolvency) No. 558 Of 2019 - - - Dated:- 11-12-2019 - A.I.S. Cheema, Judicial Member And Kanthi Narahari, Technical Member Dr. Amit George, Swaroop George, Piyo Harold, Rishabh Dheer, Amol Acharya and Bharat Rayadurgam, Advs. for the Appellant. Ashish Makhija, Gautam Singh, Anurag Bhatt and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Debtor vide its Board meeting dated 20.12.2015 (Page 276 Vol. II). 4. The Adjudicating Authority admitted the application on the ground that the loan which was granted by the Financial Creditor, was reflected in the balance sheet as Long Term Borrowing and relied upon written undertaking given by Corporate Debtor dated 09.02.2016(Page133Vol.I)where in it was categorically admitted that a sum of ₹ 41,90,000/- has been received from the Financial Creditor, his wife and mother. Further, the said written undertaking at clause - 7 reads as follows; (Page 134 Vol-) 'Accordingly the First Party accepts to pay Second Party ₹ 79,94,665/- (Principal 27,17,000/- and 14,73,000/- plus interest 38,04,655/-) and initial paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that the cheque will be honoured on due date and accordingly the Financial Creditor had accepted the same. 6. One of the contentions raised by the Financial Creditor is that as per the undertaking dated 09.02.2016, the Corporate Debtor issued a cheque for ₹ 1,58,27,634/- in the name of Financial Creditor. However, the cheque was dishonored and a notice under Section 138 of Negotiable Instruments Act, 1881 dated 13.12.2016 was issued. 7. The stand of the Appellant for Corporate Debtor is that the Financial Creditor/Respondent (herein) had stolen the cheque book and forged signature on the said cheque and deposited the same. The Corporate Debtor lodged an FIR in that context. Further, the case of the Appellant is that the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, one Mr. Sumit Dhadda, a Chartered Accountant, had appeared before the Adjudicating Authority and made a statement that ₹ 50 lakhs had been deposited and ₹ 1,00,17,700/- would further be paid shortly. However, the Adjudicating Authority refused to listen to the submission of the said Representative stating that he has not filed Vakalatnama. It is the stand of the Appellant that if the learned Adjudicating Authority had given an opportunity to the Representative of the Corporate Debtor, the full facts regarding payments made would have been submitted with proof. 9. The main issue is whether the Appellant i.e., Corporate Debtor has paid the debt prior to admission of Application under section 7 of IBC? 10. We have perused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 d 16.01.2019 4190000/- 016982 HDFC Asha Tobbaco to Ahmednagar Court 19.01.2019 e. 18.01.2019 5017700/- 007918 ICICI Fatima Sajid Hussain to Khozim 19.01.2019 (The Applicants are given no objection for withdrawal of ₹ 50 lac deposited before the concerned J.M.F.C.Court Ahmednagar) (Emphasis Supplied) 12. From the chart of details of payment made, the total amount of ₹ 1,50,17,700/-has been paid to the Respondent/Applicant. 13. The Appellant, in their Written Submission, have stated that the alleged Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant cannot be treated as a Financial debt and default, in view of no debt payable to the Financial Creditor. Even the Respondent/Applicant did not deny the receipt of the aforesaid amount of ₹ 1,50,17,770/-. Whilst it is stated that the said amount has not been paid towards their debt but it has paid because of criminal cases filed against Directors of Corporate Debtor Company. However, we are not inclined to accept the said contention of the 1st Respondent/Applicant. We take a view that continuing Proceedings despite receipt of debt, cannot be termed as Application for Resolution. RELEVANT PROVISIONS OF LAW: 16. Section 3(11) of IBC defines 'debt' means a liability or obligation in respect of claim which is due fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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