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TMI Blog2021 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... a memorandum of understanding on 07.03.2017, as per the MOU, the Applicant disbursed sum of Rs. 39,95,00,000/- in tranches between March 2017 to February 2019 for the supply of the gold coins/gold ornaments. 3. On 15.04.2019 the Applicant and the Corporate Debtor altered the terms of their existing MOU and converted into a 'loan' vide a loan agreement. The said Loan Agreement reveals that the advance money paid to buy gold was converted into loan w.e.f. 01.04.2019 repayable in 5 years with the interest @10%. 4. Thereafter the CIRP was initiated by this Tribunal against the Corporate Debtor vide order dated 13.11.2019 and Respondent No.1 was appointed as the Resolution Professional. 5. On 03.03.2020 the Applicant filed form C and submitted its claim sum of Rs. 42,61,33,333/- as a Financial Creditor before the R1, this claim was rejected by the R1 on 06.05.2020 on ground that the Applicant does not fall in the ambit of the Financial Creditor of the Corporate Debtor and classified Applicant claim under 'Other Creditors'. Particulars of the claim as follows: Principal Amount 39,95,00,000/- Interest 2,66,33,333/- Total 42,61,33,333/- 6. The Applicant further submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19 explaining reasons for delay in supply of gold coins and sought time of extension of 3-4 months. d. The Applicant vide letter dated 05.03.2019, conveyed the displeasure over the non-fulfilment of MOU terms and extension of time period. The Applicant also sought for refund of money paid as the Corporate Debtor was unable to fulfil the application. e. The Corporate Debtor on 11.03.2019 informed the Applicant of its inability to fulfil its obligation under MOU and requested the Applicant to convert the amount into unsecured loan suggesting repayment of loan. The Applicant sent default notice on 14.03.2019 warning the Corporate Debtor of the consequences if the MOU were not fulfilled within 7 days. However, the Corporate Debtor requested for further time for repayment of loan on 18.03.2019. On 21.03.2019, the Applicant agreed to the request of Corporate Debtor for conversion of said amount into loan and sought for draft loan agreement for perusal and approval by applicant. f. The said loan agreement was executed on 15.04.2019 by and between the Applicant and Corporate Debtor. The terms of the loan agreement required that the Corporate Debtor would repay the loan amount within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and in such manner as laid down in sub-section (2) to any persons as referred to in sub-section (4), he shall apply to the Adjudicating Authority for avoidance of preferential transactions and for, one or more of the orders referred to in section 44. (2) A corporate debtor shall be deemed to have given a preference, if- (a) there is a transfer of property or an interest thereof of the corporate debtor for the benefit of a creditor or a surety or a guarantor for or on account of an antecedent financial debt or operational debt or other liabilities owed by the corporate debtor; and (b) the transfer under clause (a) has the effect of putting such creditor or a surety or a guarantor in a beneficial position than it would have been in the event of a distribution of assets being made in accordance with section 53. (3) For the purposes of sub-section (2), a preference shall not include the following transfers- (a) transfer made in the ordinary course of the business or financial affairs of the corporate debtor or the transferee; (b) any transfer creating a security interest in property acquired by the corporate debtor to the extent that- (i) such security interest secures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal debts to that person as the Adjudicating Authority deems appropriate; (f) direct for providing security or charge on any property for the discharge of any financial debt or operational debt under the order, and such security or charge to have the same priority as a security or charge released or discharged wholly or in part by the giving of the preference; and (g) direct for providing the extent to which any person whose property is so vested in the corporate debtor, or on whom financial debts or operational debts are imposed by the order, are to be proved in the liquidation or the corporate insolvency resolution process for financial debts or operational debts which arose from, or were released or discharged wholly or in part by the giving of the preference: Provided that an order under this section shall not- (a) affect any interest in property which was acquired from a person other than the corporate debtor or any interest derived from such interest and was acquired in good faith and for value; (b) require a person, who received a benefit from the preferential transaction in good faith and for value to pay a sum to the liquidator or the resolution professional. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions shall have to be examined in a given case: (i). As to whether such transfer is for the benefit of a creditor or a surety or a guarantor? (ii). As to whether such transfer is for or on account of an antecedent financial debt or operational debt or other liabilities owed by the corporate debtor? (iii). As to whether such transfer has the effect of putting such creditor or surety or guarantor in a beneficial position than it would have been in the event of distribution of assets being made in accordance with Section 53? (iv). If such transfer had been for the benefit of a related party (other than an employee), as to whether the same was made during the period of two years preceding the insolvency commencement date; and if such transfer had been for the benefit of an unrelated party, as to whether the same was made during the period of one year preceding the insolvency commencement date? (v) As to whether such transfer is not an excluded transaction in terms of Sub-section (3) of Section 43? 22. In view of the ratio laid down in Anuj Jain's case and looking at the facts of the present case that the CIRP against the Corporate Debtor commenced on 13.11.2019, the Loan Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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