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TMI Blog2019 (3) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... dira Anand vide loan agreement dated April 1, 2012 the loan agreement dated April 1, 2012 shows that monies advanced from time to time was agreed to be repaid by the corporate debtor on demand as unsecured loan till March 31, 2016 which obviously is a non-current liability falling within the ambit of long-term borrowings . Therefore, the contention of the second respondent is not substantiated with the relevant documents of the corporate debtor - there requires a Forensic Audit to be conducted by the first respondent/resolution professional in order to examine the fraudulent, and avoidance transactions with regard to the claims of the creditors of the corporate debtor including the second respondent - the issue is decided in favour of the applicant and against the respondents. Whether respondent No. 2 is falling within the ambit of the related party as defined under section 5(24), (24A) of the I and B Code, 2016? - HELD THAT:- The purport and object of section 5(24), (24A) read with proviso to sub- section (2) of section 21 of the I and B Code, 2016 is that a party which has vested interest/relation with the corporate debtor should not become the part of the CoC for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted party and consequentially declare that the second respondent herein, as falling within the definition of 'related party' under the Code and therefore restrain them from in any manner exercising any right of representation/participation or voting in the members of CoC. (ii) Order a proper forensic audit and direct the first respondent to examine fraudulent, avoidance transactions and to take action under the specific provisions of the Code further in terms of the examination of the transactions and forensic report. (iii) Restraining the first respondent from proceedings with the further CIRP on the basis of defective CoC composition and voting, pending the decision on the issue of related party. 4. In relation to the above matter, the applicant had at an earlier point of time filed an application under section 7 of the I and B Code, 2016. The application was numbered as C. P. No. 603 of 2017 which was admitted on June 6, 2018 for initiating the CIR process against the corporate debtor, viz., M/s. Anandram Developers P. Ltd. The public announcement was made for filing the claims by the creditors with the IRP. Thereafter, the CoC was constituted. 5. The applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bharathi (K.)) are the directors. It has further been sub- mitted that one Mr. Mukund Vijayan, a shareholder of M/s. Anandcine Services P. Ltd., is also the shareholder of the corporate debtor holding 9.09 per cent. shareholding in the corporate debtor. 7. It is submitted that 55 per cent. of the shareholders of second respondent are relatives or shareholders having more than of the 81 per cent. shareholding of the corporate debtor. The corporate debtor acknowledged the said debt by executing a confirmation of account in favour of the second respondent. Based on these facts, the applicant alleges that there are common shareholders, directors, promoters, etc., as between the corporate debtor, claimants and other related companies, clearly falling under the definition of related party . It has been contended that the second respondent cannot have any right of representation, participation or voting in a meeting of CoC. It has further been contended by the applicant that the very claims are bogus, time barred, validated by self serving document of the corporate debtor apparently to reduce the voting right of the applicant and defeat the purpose of the CoC. It is has further been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial creditors based on the documents that were created for the purpose of such claim and the claim made by the second respondent is based on the assignment deeds are very much sustainable and legally tenable in the eye of law. 11. It has also been denied that the transactions audit report has not sufficiently covered the loan of Mrs. Indira Anand and the said report is not severely affected because of the non-availability of the documents. The first respondent/resolution professional submits that it is a sheer attempt of the applicant to portray the first respondent and his office in bad light before this Authority. 12. The second respondent has filed reply wherein the allegations levelled by the applicant have been denied and submitted that Mr. Mukund Vijayan is not a shareholder in the second respondent-company, and there are only two shareholders, viz., Mrs. Padma Manohar and Mr. Anand Prasad, who are not holding any shares in the corporate debtor. It has further been sub- mitted that the balance-sheets of the corporate debtor clearly record the debt due, and as such there can be no doubt of the genuineness of the transactions. It has specifically been denied that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anand, on April 1, 2015 has written a letter to the corporate debtor that out of the transfer of amount by her on various dates aggregating to ₹ 324.16 crores lying in her credit is requested to be debited in her account for a sum of ₹ 200 crores and be credited to the account of M/s. Anandcine Services, in the books of account of the corporate debtor. The letter does not constitute a valid document in the eye of law as the same is neither an assignment deed nor agreement as claimed by the second respondent. It has further been noted by this Authority that a loan agreement has been signed between the second respondent, i. e., M/s. Anandcine Services P. Ltd., and the corporate debtor on April 1, 2015 which provides that the lender has provided loans to the borrower and the aggregate amount of loan as on April 1, 2015 is ₹ 200 crores, then another agreement dated September 4, 2017 has been signed between the second respondent and the corporate debtor wherein it has been recorded that the borrower had borrowed a sum of ₹ 200 crores from M/s. Anandcine Services P. Ltd., lender, vide loan agreement dated April 1, 2015. The agreements noted above are not substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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