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TMI Blog2018 (8) TMI 1992X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of subsequent dated 25th October, 2017 has been given or as to how in the agreement dated 25th October, 2017, amount due as on 5th November, 2017 has been shown, the impugned order cannot be sustained - Impugned order set aside - appeal allowed. - Company Appeal (AT) (Insolvency) No.140/2018 - - - Dated:- 29-8-2018 - Justice S.J. Mukhopadhaya (Chairperson) And Justice Bansi Lal Bhat (Member (Judicial) For Appellant: Mr. Harin P Raval, Senior Advocate alongwith Mr. Jayant Mehta, Mr Mohit D. Ram, Ms Monisha Handa, Mr. Nipun Saxena and Mr.Sajal Jain, Advocates. For Respondents: Mr Rajesh Parikh, Mr. Bhaskar Singh, Ms Dharita Malkan, Advocate for Respondent No.1 Mr. Utkarsh Tiwari and Mr.Alok Kumar, Advocates for Respondent No.2. Ms Neha Naik, Advocate for Intervener. JUDGMENT Sudhansu Jyoti Mukhopadhaya, The appellant has challenged the order dated 21st February, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad whereby and whereunder the application under Section 7 of the Insolvency Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) preferred by the respondent, The Kotak Resour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngement, the Corporate Debtor borrowed a sum of ₹ 1 crore (Rupees One crore). Reliance was also placed on Pledge Agreement dated 5th September, 2012; three cheques given by Corporate Debtor towards security of the principal amount of borrowing and Notice dated 16th September, 2017 issued by Respondent, to which there no reply was given by the Corporate Debtor. It was also submitted that the amount of ₹ 1 crore (Rupees One Crore only) was lent to the Corporate Debtor and Clause E of the Pledge Agreement contains acknowledgement that Corporate Debtor has received ₹ 50 lacs (Rupees Fifty lakhs only) on 5th July, 2012. The agreement also records that a further sum of ₹ 50 lacs (Rupees Fifty lacs only) in two instalments were to be given to the Corporate Debtor . ₹ 50 lacs (Rupees Fifty lacs only) which was lent on 5th July, 2012 carried a fixed interest of ₹ 2.67 lacs (Rupees Two lacs and sixty seven thousand only) to be paid by 10th September, 2012. Further, according to learned counsel for 3rd respondent in terms of Clause K a further interest @ 6% was payable by 1st October, 2012. FINDING 7. Normally the Adjudicating Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be. 9. As per decision of the Hon ble Supreme Court, the Corporate Debtor is entitled to point out that a default has not occurred in the sense that debt , which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. Therefore, it is open to the Corporate Debtor or its Directors to point out that the debt is not payable by Corporate Debtor in law and also and/or in fact. 10. Based on the aforesaid principle we have noticed the submission made on behalf of the parties and documents filed by them to find out whether the allegation of the appellant that there is no debt due from the Corporate Debtor or a debt is not payable in law and in fact is correct or not. 11. The 1st Respondent (financial creditor) has relied on Deed of Assignment of Debt dated 25th October, 2017 purported to have been signed between Mr Navis Multitrade Pvt Ltd and Kotak Resources. The relevant portion of the which reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent before the Adjudicating Authority which is as follows: 13. From the aforesaid document it is not clear as to how in the letter dated 24th October, 2017, the 1st respondent referred the Deed of Assignment of subsequent date i.e. 25th October, 2017. 14. The appellant has enclosed the document (at Page 234) to show that the sum of ₹ 50 lakhs (Rupees Fifty lakhs only) has already been paid which has been incorporated in the Balance Sheet dated 1st April, 2011 to 31st March, 2014. The payment through Bank account in favour of the Navis has been shown therein as follows: 15. The letter dated 11th July, 2015 written by the Corporate Debtor to the Navis shows that there is no outstanding dues of the Navis . On the other hand, the Corporate Debtor has claimed a sum of ₹ 4,27,000/- (Rupees Four lakhs twenty seven thousand only) payable by the Respondent, which has not been disputed. The letter is as follows: 16. There is nothing on record to suggest that after payment of ₹ 50 lacs (Rupees Fifty lakhs only) in the initial stage another sum of ₹ 50 lakhs (Rupees Fifty lakhs only) was paid by the Respondent to make a total amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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