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TMI Blog2021 (11) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... blished. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. Petition admitted - moratorium declared. - CP (IB) 1806/MB/C-II/2019 - - - Dated:- 8-10-2021 - Ashok Kumar Borah, Member (J) And Shyam Babu Gautam, Member (T) For the Appellant : Amol Nehru , Advocate For the Respondents : P. Sapte , Advocate ORDER Shyam Babu Gautam , Member ( T ) 1. This is a Company Petition filed under section 7 ( the Petition ) of the Insolvency and Bankruptcy Code, 2016 (IBC) by Dr. Vilas Pandurang Sabale and Anr. ( the Financial Creditors ), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Sant Dyaneshwar Hospital Private Limited ( the Corporate Debtor ). 2. The Corporate Debtor is a Private c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Sable has advanced a loan amounting to ₹ 80,00,000/- to the Corporate Debtor. The Corporate Debtor has made part payment of ₹ 18,00,000/-, thus the amount payable by it to the Financial Creditor No. 1 is ₹ 62,00,000/-. The details of payments are mentioned in the bank statements in Annexure I - B Colly (Pg. Nos. 31 to 43). 8. The Financial Creditor No. 2, Dr. Suhas Laxman Kamble has advanced a loan amounting to ₹ 1,11,00,000/- to the Corporate Debtor. The details of payments are mentioned in the bank statements in Annexure I-C colly (Pg. Nos. 44 to 53). 9. The Financial Creditor No. 3, Dr. Vinayak Mane has advanced a loan amounting to ₹ 54,00,000/- to the Corporate Debtor. The Corporate Debtor has made part payment of ₹ 18,00,000/-, thus the amount payable by it to the Financial Creditor No. 1 is ₹ 36,00,000/-. The details of payments are mentioned in the bank statement in Annexure I-D colly (Pg. Nos. 54 to 58). 10. The Financial Creditor No. 4, Dr. Anu Gaikwad has advanced a loan amounting to ₹ 69,00,000/- to the Corporate Debtor. The Corporate Debtor has made part payment of ₹ 18,00,000/-, thus the amount payable b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a financial statement. This is more so in light of the statement of the Auditor at Pg. No. 2 of exhibit B under para 2 (c) where it has been stated that the Balance sheet, the statement of profit and loss and the cash flow statement dealt with by this Report are in agreement with the books of account and 2 (d) where it is stated that in our opinion, the aforesaid financial statements comply with the accounting standards specified under section 133 of the Act read with Rule 7 of the (Companies Accounts) Rules, 2014 . In any case, the Auditor did not find any such inaccuracies but was only referring to the information having come from a source other than the auditor is unsubstantiated and devoid of any credibility. In fact Civil Suits filed by the Corporate Debtor do not disclose any factual information that would question the credibility if the entries made in the financial statements filed by the Financial Creditor. Not one single document has been filed along with the Civil Suits or in this Application that would put the credibility of these entries into question. 17. The Corporate Debtor has defaulted in payment of the Financial Debt which was due and payable as mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould have to be construed to include interest free loans advanced to finance the business operations of a corporate body. 20. Therefore, contrary to what was argued by the counsel for the Corporate Debtor, as per the above Supreme Court case, the payment of 'interest' on a loan is not an essential ingredient to constitute the said loan as a 'financial debt' as per Section 5(8) of the IBC. Submissions of the Corporate Debtor: 21. The Financial Creditors had not provided any loan to Corporate Debtor Company nor provided any credit facility to Corporate Debtor. The Financial Creditors have failed to attach single documentary proof to substantiate its claim except referring merely few bank entries and statements. 22. This petition filed by Financial Creditor against the Corporate Debtor is nothing but a pressure tactic and is an abuse of process of law as it is evident that these Financial Creditors first filed S. 9 petitions/application individually against same Corporate Debtor earlier to the present petition/application. These S. 9 petitions are still pending for hearing. Once these Financial Creditors found that they have no chance to succeed in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taking over. 26. However, during audit and inspection of books of accounts, present stakeholders and management of Corporate Debtor has found out that many entries in financial statements were untrue and were made at the behest of this Financial Creditor. 27. Moreover, Corporate Debtor was also constrained to file a separate suit for premediated fraud played by Financial Creditor under share purchase agreement which was executed by Financial Creditor with Corporate Debtor. 28. The Corporate Debtor states that, more over at no point of time, the Corporate Debtor admitted the outstanding due and payable amount. Hence, on the ground of dispute of the liability this Petition is not maintainable on this ground. 29. After taking over of company i.e. Sant Dnyaneshwar Hospital Pvt. Ltd., it was subsequently revealed that Financial Creditor had made few unsupported entries in the financial statement portraying Financial Creditor as unsecured creditor. The Corporate Debtor conducted detailed accounting audit from external CA firm which observed that there was no real transaction behind these unsecured entries. These entries also found to have been spuriously made under the head ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Pramender Kumar Mittal And Others Vs. Desiya Hotel Resorts Private Limited NATIONAL COMPANY LAW TRIBUNAL ALLAHABAD BENCH Company Petition (IB) No. 240/ALD/2019 Relevant Para 22 to end Mere plain reading of provisions shows that the financial debt means the debt alongwith interest, if any, which is disburse against the consideration for time value of money and includes the debt which has been referred in clause (a) to (i) and when I shall consider the amount which the applicants claim they have deposited as per annexure 1 then I find nowhere in the application the applicant has mentioned that fact that he has deposited the amount against the consideration for time value of money. 24. As I have already stated in the above-mentioned paragraph that the applicants failed to produce any document to show that what was the agreed interest in between the parties on the basis of which money was borrowed. Therefore, the case of the applicant in my opinion, does not comes under Section 5(8)(a) of IB Code and 1 further find that it also does not come either under (b) or (c) or (d) or (e) or (f) or (g) or (h) or (i) of Section 5(8) of the I B Code. Therefore, I am una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stration No. IBBI/IPA-002/IP-N00450/2017-2018/11276, as the Interim Resolution Professional of the Corporate Debtor. He has filed his written communication in Form 2 as required under rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 along with a copy of his Certificate of Registration. 34. The application made by the Financial Creditor is complete in all respects as required by law. It clearly shows that the Corporate Debtor is in default of a debt due and payable, and the default is in excess of minimum amount stipulated under section 4(1) of the IBC. Therefore, the debt and default stands established and there is no reason to deny the admission of the Petition. In view of this, this Adjudicating Authority admits this Petition and orders initiation of CIRP against the Corporate Debtor. 35. It is, accordingly, hereby ordered as follows:- (a) The petition bearing CP (IB) 1806/MB/C-II/2019 filed by Dr. Vilas Pandurang Sabale and Anr. the Financial Creditors, under section 7 of the IBC read with rule 4(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating Corporate Insolvency Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable to IRP or, as the case may be, the RP shall be compliant with such Regulations, Circulars and Directions issued/as may be issued by the Insolvency Bankruptcy Board of India (IBBI). The IRP shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the IBC. (g) During the CIRP Period, the management of the Corporate Debtor shall vest in the IRP or, as the case may be, the RP in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within a period of one week from the date of receipt of this Order, in default of which coercive steps will follow. (h) The Financial Creditor shall deposit a sum of ₹ 2,00,000/- (Rupees Three Lakhs only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). (i) The Registry is directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post and email immediately, and in any case, not later than two days from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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