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TMI Blog2021 (5) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... an Asia Project Development Funds India & Anr, who happens to be the applicant in the main matter to Produce balance sheets from 2008-09 till 2018-19. The details of transactions leading to the filing of this application as averred by the Applicant are as follows: i. The applicant states that the Respondent did not provide any financial or credit facility to the applicant in the main matter. ii. The applicant further submits that the Respondent in the main matter alleges that the Investment vide share subscription agreement comes under the ambit of Financial Credit as per section 7 of the IBC, 2016. The applicant further submits that in terms of the order of Hon'ble NCLAT in the matter of Shailesh Sangani Vs. Joel Cardoso & Anr. [Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that no provision is made for interest thereon. Due to fluctuations in market and the risks to which it is exposed, a Company may at times feel the heat of resource crunch and the stakeholders like Promoter, Director or a Shareholder may, in order to protect their legitimate interests be called upon to respond to the crisis and in order to save the company they may infuse funds; Whom' claiming interest. In such situation such funds may be treated as long term borrowings. Once it is so, it cannot be said that the debt has not been disbursed against the consideration for the time value of the money. The interests of such stakeholders cannot be said to be in conflict with the interests of the Company. Enhancement of assets, incre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e produced by the petitioner in terms of Section 10(3)(a) of the IBC code, 2016 at the time of filing for adjudicating purposes. That it is paramount that balance sheets from 2008-2009 till 2018-2019 of the Respondents (Applicants in the main matter) be produced before the Hon'ble Tribunal. 2. Consequent to the notice issued by this Tribunal, the Respondent filed its reply in which the following contentions are made: i. The Respondent in its reply submitted that the present application has been filed under incorrect provisions of law and deserves to be dismissed on maintainability. The Respondent further submitted that the main application has been filed under section 7 of IBC, 2016 which pertains to initiation of CIRP by Financial C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -19. 4. From the perusal of the Application, it is clear that the present application has been filed under section 10(3)(a) of IBC, 2016 Read with Rule 11 and Rule 32 of the NCLT Rules, 2016. The section 10(3)(a) of IBC, 2016 for brevity has been reproduced below: 10. Initiation of corporate insolvency resolution process by corporate applicant.- (1) Where a corporate debtor has committed a default, a corporate applicant thereof may file an application for initiating corporate insolvency resolution process with the Adjudicating Authority. (2) The application under sub-section (1) shall be filed in such form, containing such particulars and in such manner and accompanied with such fee as may be prescribed. (3) The corporate applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is 'Corporate Debtor' in the main matter i.e., IB-1772/ND/2019 along with that the main matter has been filed under section 7 of IBC, 2016 not under the section 10 of IBC, 2016. For brevity of the applicant the definition of "Corporate Applicant" along with the relevant part of section 7 of IBC, 2016 is reproduced below: "Corporate Applicant" means- (a) Corporate Debtor, or (b) A member or partner of the Corporate Debtor who is authorized to make an application for the corporate insolvency resolution process under the constitutional document of the corporate debtor, or (c) An individual who is in charge of managing the operations and resources of the corporate debtor, or (d) A person who has control and supervision ove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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