9911796707
TMI Blog2019 (12) TMI 1459X X X X Extracts X X X X X X X X Extracts X X X X ..... at loan was really granted as per the request of the corporate debtor. In Form V of the application, he did not state all relevant facts - the financial creditor did not disclose the document to establish its claim of loan disbursement. It has relied on only one document that is xerox copy of the statement of account issued by HDFC Bank (annexure 6) to show that amount of ₹ 25 lakhs was transferred to the account of corporate debtor by way of RTGS. The corporate debtor has come out with the clear defence that they have paid the entire amount and nothing is due and payable. In such situation, it was expected from the financial creditor to explain as to what happened to earlier cheque of the corporate debtor - It is now well-settled that this authority cannot act as a recovery Tribunal. The financial creditor did not produce required documents to show that they received the application from the corporate debtor requesting the loan. The documents showing that the so-called application was duly processed by them and later on it was granted. The financial creditor did not produce the document showing that thereafter they issued in favour of the corporate debtor the letter infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was fixed at 15 per cent. per annum. The corporate debtor paid interest on above amount till June 10, 2017 and thereafter committed default in paying the loan. Hence, this proceeding is filed to start CIRP of the corporate debtor. 3. It is further stated that on demand, the corporate debtor handed over the post-dated cheque of ₹ 25 lakhs dated October 9, 2018 drawn from Bank of India. However, it was dishonoured. Hence, notice under section 138 of the Negotiable Instruments Act, 1881 was served on the corporate debtor. On November 1, 2018 corporate debtor gave letter admitting liability but did not pay the debt. 4. Notice of this application is served on the corporate debtor. It appeared through its director Mr. Manish Kumar Agarwal. He filed affidavit in reply. He contended that there is no debt due and payable by the corporate debtor to the financial creditor and the corporate debtor did not commit any default as alleged. According to him, the amount borrowed from the financial creditor has been squared off in long transaction between the parties. In order to show this, he produced on record the copy of civil suit pending in between them. He contended that this claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the corporate debtor. Obviously, when any NBFC gives loan to an individual or for that matter any corporate person, it may require to follow certain rules of business. 9. In this case, the financial creditor did not disclose in its application, more particular in Part V of the application, by giving details as to when the corporate debtor made application for loan, when it was granted. The financial creditor did not produce on record the document to show that loan was really granted as per the request of the corporate debtor. In Form V of the application, he did not state all relevant facts more particularly relating to following : (i) Whether any security held and any document thereof ? (ii) The latest complete copy of financial contract reflecting all advances and wavers ? (iii) Record of default ? (iv) Documents showing the entries relating to loan as per the Bank ers' Books Evidence Act, 1891 filed list of documents attached to the appli cation in order to prove existence of financial debt and the amount and date of default. 10. The financial creditor did not disclose the document to establish its claim of loan disbursement. It has relied on only one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot act as a recovery Tribunal. The financial creditor did not produce required documents to show that they received the application from the corporate debtor requesting the loan. The documents showing that the so-called application was duly processed by them and later on it was granted. The financial creditor did not produce the document showing that thereafter they issued in favour of the corporate debtor the letter informing that the loan proposal is granted as requested, etc. 13. Section 7(3)(a) of the IBC requires the financial creditor to produce along with its application record on default recorded with information utility or such other evidence of default may be specified. In this case, the financial creditor produced on record the letter of corporate debtor dated June 14, 2017 and copy of the cheque as an evidence of default but it did not produce required evidence to establish the debt to prove that is it has advanced loan to the corporate debtor. The financial creditor has produced bank statement to show transfer of amount by RTGS. But we have every doubt in our mind, whether that account stands in name of the financial creditor or not because at title name appears a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
