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TMI Blog2020 (9) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... that the demand notice have been issued, received and replied amongst him and his son only. This Bench also has come to a conclusion that the effective control of the Corporate Debtor Company has remained with the Petitioner only. This Bench also fairly concludes that the whole process of issuing, receiving and replying of the demand notice by the Petitioner and Mr. Sunil Kewalramani (son and POA holder of the Petitioner) has been without any knowledge of the other Directors and therefore clearly shows malicious intention of the Petitioners. Therefore, the Bench concludes that there is not been any Effective service of Demand notice . Whether the amount being mentioned by the Petitioner in claim of ₹ 47,16,667/- can qualify as a financial debt or not? - HELD THAT:- In this case, the Bench takes note of the fact that there is no written terms and conditions for repayment of interest. Even the Petitioner in his submissions has mentioned that there was no interest chargeable on this account, nor there was any due date of payment. A perusal of the records also shows that no interest has been created in the Books of Accounts of the company. Therefore, there is no time val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of financial debt. 4. The Counsel for the Petitioner submits that the Petitioner issued a letter dated 21.08.2017 calling upon the Corporate Debtor to repay the debt due to them. It is further stated that the Corporate Debtor issued reply dated 04.09.2017 to the Petitioner wherein liability of repayment is not denied. 5. The Counsel for the Petitioner further submits that various other petitions have been filed by the Corporate Debtor against the Petitioner under Section 213, 241 242 of the Companies Act, 2013 after the filing of the present Petition under the Code which clear shows the malafide intention of the Corporate Debtor to frustrate the admission of the present Petition. 6. The Counsel for the Petitioner submits that the Corporate Debtor has failed and neglected to repay the said loan amount to the Petitioner and on the contrary, the claim of the Petitioner is disputed by the Corporate Debtor with malafide intentions and ulterior motives. Contentions made by the Corporate Debtor: 7. The Counsel for the Corporate Debtor submits that the Corporate Debtor is a family owned Company comprising of 3 brothers holding 1/3 shares of the Company themselve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Capital but not as debt under I B Code, 2016. The Counsel for the Corporate Debtor says that it is evident from the records that the alleged amount of debt was brought in by the Petitioner in the capacity of Promoter, Director and Shareholder and therefore, it cannot be considered as debt under the Code. 12. The Counsel for the Corporate Debtor submits that in present case, Mr. Sunil Kewalramani, who is son and POA holder of the Petitioner, has illegally drawn ₹ 54.00 lacs in form of Commission and Brokerage from the Corporate Debtor in the name of the Petitioner, his wife, another son, daughter and mother. Mr. Sunil Kewalramani, who is son and POA of the Petitioner, has illegally withdrawn ₹ 46.00 Lakhs from the various Bank Accounts of the Company without any authority. Furthermore, Mr. Sunil Kewalramani, who is son and POA of the Petitioner herein, also drew illegal salary amounting to ₹ 100.24 Lakhs in the name of himself and his wife. There are almost ₹ 89.00 Lakhs siphoned off in the name of Investment by POA of the Petitioner and his wife. Also, it is submitted that Mr. Sunil Kewalramani is holding illegal possession of cash amounting to ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor that the aforesaid events, documents on record and conduct are enough to demonstrate the malicious intention of the Petitioners to file this Petition before the Tribunal. Accordingly, Petitioners made themselves liable under Section 65, 72 and 75 of the Code. Findings: 16. This Bench noted that Corporate Debtor is a company owned by 3 brothers with the 33% shareholding each. Mr. Parmanand Kewalramani ( the Petitioner ) is the father of Mr. Sunil Parmanand Kewalramani ( POA holder of the Petitioner ). 17. This Petition has been filed by the shareholder in the Company under Section 7 of the Code. This Bench noted a very queer aspect in the demand notice in respect of the outstanding loan which was served on 21.08.2017 by the Petitioner to Mr. Sunil Kewalramani (son and POA holder of the Petitioner) among themselves. The Petitioner sends the Demand Notice which is replied by Mr. Sunil Kewalramani (son and POA holder of the Petitioner) on behalf of the Corporate Debtor Company. Here, the Bench notes that both of them are Directors on the board of the Corporate Debtor Company. 18. The Reply has been filed by the Petitioner and Mr. Sunil Kewalramani (son and POA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... created in the Books of Accounts of the company. Therefore, there is no time value of money in terms of Section 5(8) of the Code. Neither there is time value of money nor there is due date of repayment. 22. This Bench therefore has no hesitation in concluding that it does not fall under Section 5(8) of the Code and cannot be termed as financial debt. In this background, this Bench tends to agree with the arguments submitted by the Corporate Debtor that what is being claimed as debt by the Petitioner is in fact infusion of funds as Promoters and Shareholders contributed for running its operations since it is a private business of the Kewalramani family. This Bench is of the view, after looking at the case, that it is a contribution to the capital structure of the Company as there is no any written or oral agreement or any fixed tenure for which money has been given to the Corporate Debtor Company. 23. I.A. No. 10 of 2018 has been filed by the Corporate Debtor /Respondent against the Petitioner stating that the proceedings have been initiated by the Petitioner fraudulently and falsely intended and not for resolution of Insolvency. The Corporate Debtor through this IA seeks that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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