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TMI Blog2020 (8) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... a financial debt within the meaning of the Code. The Petitioner contends that the bank statements reveal that the transactions have been made by him in favour of GNIDA on behalf of the Company, given the Resolution Plan passed by the Board of Directors in its meeting dated 01st September 2015. The copies of the balance sheets filed for the years ending 2015, 2016 and 2017 depict the borrowings from Directors, Shareholders and related parties under the heading Short Term Borrowings to the tune of ₹ 9 crore. The record is sufficient to show that the amount as claimed by the Applicant is due and payable , which was disbursed by the Petitioner to GNIDA on behalf of the Respondent Company and based on the above the Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ambit of financial debt . Admittedly, the amount has not been paid back, and there is a default. The adjudicating authority had admitted the petition filed under Section 7 of the Insolvency Bankruptcy Code, 2016. There are no justification for interfering with the impugned order - appeal dismissed. - Company Appeal (AT) (Insolvency) No. 1264 of 2019 - - - Dated:- 8-6-2020 - [Justice Venugopal M.] Member (Judicial), [V. P. Singh] Member (Technical) And [Shreesha Merla] Member (Technical) For the Appellant : Mr Swapnil Gupta and Mr Rudrajit Ghosh, Advocates For the Respondent : Mr Rohan Chawla, Advocate for R-1 Mr Syed Sarfaraz Karim, Advocate for R-2 JUDGMENT [ Per; V. P. Singh, Member (T) ] This Appeal emana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olution provides that since the Company is in deep financial trouble, because of non-availability of funds for payments to Greater Noida Industrial Development Authority (in short GNIDA ) and continuing construction, hence the Directors of the Company are authorised to take necessary unsecured loans from shareholders, Directors as well as relatives/related parties. It was further resolved that the said loan shall be used to clear the overdue amount of GNIDA and to continue construction of school building. The amounts taken will be returned along with interest @ 12%, which is lower than the rate of interest being charged by GNIDA. It was further resolved that any amount of loans obtained by the Company shall be returned soon after receiving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is filed mainly on the ground that the Adjudicating Authority erred in holding that the amount claimed from the Respondent No.2 to the Respondent No.1 is in the nature of loan; the Adjudicating Authority has failed to consider that these amounts were conveniently paid at a time when the Respondent No.1/his family was in complete control of the affairs of the Respondent No.2; the Adjudicating Authority has further failed to consider that the purported Board Resolution dated 01st September 2015, which allegedly authorised the Board of the Appellant to secure loans from the Respondent No.1 is a forged and fabricated document; the Adjudicating Authority has failed to consider that the Respondent No.1 has been unable to disclose any default wha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, and the amount claimed by the Petitioner is a financial debt within the meaning of the Code. The Petitioner contends that the bank statements reveal that the transactions have been made by him in favour of GNIDA on behalf of the Company, given the Resolution Plan passed by the Board of Directors in its meeting dated 01st September 2015. The copies of the balance sheets filed for the years ending 2015, 2016 and 2017 depict the borrowings from Directors, Shareholders and related parties under the heading Short Term Borrowings to the tune of ₹ 9 crore. The record is sufficient to show that the amount as claimed by the Applicant is due and payable , which was disbursed by the Petitioner to GNIDA on behalf of the Respondent Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on decision of the Hon ble Supreme Court in M/s. Innoventive Industries Ltd. Vs. ICICI Bank Anr. 2017 SCC OnLine SC 1025 , and submitted that the Adjudicating Authority has to be satisfied as to existence of a default. The term default has been defined in Section 3(12) of the I B Code . For the purpose of ascertainment of default, it is imperative to point out the date and time when the alleged debt has become due and payable. A debt may not be due, if it is not payable in law or in fact. In the instant case, no debt is due as nothing is payable to the Appellant in law or in fact. Admittedly, the Appellant has not stated any date on which the alleged debt became due and payable. 10. In the case mentioned above, this T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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