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TMI Blog2021 (7) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... ial debt and not as an operational debt. 2. The applicant submits that it is a financial creditor of the corporate debtor for a financial debt of ₹1,80,47,500/- and in respect of which it had filed its claim in Form C on 04.09.2018 before the RP however, the said claim for financial debt has incorrectly been treated as operational debt by the RP vide her impugned e-mail dated 06.04.2019 (Annexure A-1). Hence, the IA. 3. It is stated in the application that the corporate debtor, initially, had entered into an agreement with the applicant vide its letter dated 19.01.2005 whereunder it requested a financial debt of ₹25 lakhs from the applicant. However, the said financial assistance, at the behest of the corporate debtor, was termed/veiled as a deposit towards appointment as indenting agent and it was treated by the parties as a debt and carried interest of 18% per annum. The applicant vide letter dated 19.01.2005 agreed to provide the debt as deposit which would be repaid upon maturity of the agreement alongwith interest and issued demand draft for the said sum (Annexure A-3 Colly). Thereafter, the corporate debtor paid the interest amounts due on the said financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-. The respondent-RP vide impugned e-mail dated 06.04.2019 stated that the claim filed by the applicant under Form C dated 04.09.2018 has been considered as an operational debt and hence, the applicant cannot be considered as a financial creditor. Hence, the IA. 7. Heard Mr. NPS Chawla, the learned counsel for applicant in IA No. 169/JPR/2019, Mr. Sandeep Taneja, the learned counsel for applicant in IA No. 202/JPR/2019, Mr. Ankit Sethi, the learned counsel for applicant in IA No. 205/JPR/2019, Mr. Amol Vyas, the learned counsel for the applicant in IA No. 212/JPR/2019 and Mr. Abhishek Anand, the learned counsel for the respondent- RP in all the IAs and perused the pleadings on record. 8. The learned counsel for the RP while reiterating the reply averments, submits that the issue involved in the instant IA is squarely covered by a decision of this Adjudicating Authority in IA No. 135/JPR/2019 dated 18.01.2021, also passed in this CP only. 9. On the other hand, the learned counsel for the applicant submits that the facts in the said IA and the facts in the instant IA and the issues involved are different and distinct and hence, the said decision has no application to this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al to the blocking of deposit amount and is a resultant consequence. Also, the claim of the Applicant to be considered a financial debt in terms of the code must fall under any of the category mentioned Section 5(8) (a) to (i) which as follows: Section 5 (8) financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its dematerialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; 1[Explanation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney under current or non-current liability is not indicative of its actual use/ purpose. 21. Further after analysing Form 26 AS annexed by the Applicant vide dairy no. 1967/2019, it is noted that the Corporate Debtor had deducted tax under Section I94A and 194H of the Income Tax Act, 1961 for FY 2013-14 and 2014-15 and for FY 2015-16 tax was deducted under Section l94A and 194J. Section l94A deals with interest other than interest on securities. Section I94H deals with income by way of commission or brokerage and Section 194 J deals with fees for professional or technical services. The above observation shows that the Corporate Debtor had deducted tax against the interest on the amount provided by the Applicant. On the other hand, the Applicant has failed to submit sufficient documents to establish that the amount was borrowed by the Corporate Debtor for commercial purpose, as it is nowhere mentioned in the letters dated 01.04.2014 and 01 .04.2015 that the corporate debtor is in need of money or the said deposit will be used for its business activities. [n effect the Applicant is saying that it was an agreement that was stretched beyond the textual narrative and normal literal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retation or twist implication altogether. In legal terms a person cannot approbate and reprobate at the same time. 25. Merely intercorporate deposit does not make it a financial debt, amidst the background and facts stated by the Applicant. Just because the interest component may have resulted in a larger income for the Applicant, or the Corporate Debtor may have acknowledged interest payable does not make it a core financial deal. 26. In view of the foregoing discussion, it can be concluded that the RP has rightly considered the claim of the Applicant as operational debt. The Application bearing IA No. 1351JPN2019 is dismissed and disposed of. Copy of the order be served to the parties. 11. A careful examination of the decision in the above referred IA amplify clearly that the facts in the said IA and the facts in the instant IA and the issues involved and the submissions made are identical and the instant IA is squarely covered by the decision in IA No. 135/JPR/2019 dated 18.01.2021. In view of this finding, there is no need to delve upon the rival submissions made in the instant IA. 12. In the circumstances and for the aforesaid reasons, the instant IA No. 169/JPR/2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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