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TMI Blog2022 (2) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... the notification - Hence the disputed amount being less than the pecuniary jurisdiction of this Tribunal, the Application needs to be rejected on that count. Whether the WhatsApp conversation between the Parties can be admitted as evidence? - HELD THAT:- The counsel tries to interpret section 20 of the Companies Act, in a way to admit the electronic evidence without section 65B certificate. But the said argument does not at all impress this Tribunal. Section 20 is only with regard to the service of notice on the opposite party. The proof of service through electronic mode would not form part of a record as an evidence whereas the WhatsApp messages are filed to be admitted as evidence. Hence it cannot be said that Section 20 of the Companies Act permits a party to produce electronic evidence without it being accompanied by the section 65B certificate. Hence, on the 2nd ground also the petition fails. Whether the Petitioner can be termed as Financial Creditor and whether the amount i.e., admittedly received by the Corporate Debtor can be termed as financial debt within the meaning of Section 5 (8) of IBC? - HELD THAT:- It is an admitted fact that the petitioner moved simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement. v. The Corporate Debtor is also liable to pay interest @12% ' for the delay period. 3. The Corporate Debtor filed counter contending as follows: i. This case is filed without any document acknowledging the debt, agreement or negotiable instrument, cheque agreeing to repay the amount sent to the account of the Corporate Debtor. The Petitioner did not even take permission of Corporate Debtor before depositing the amount in the account of the Corporate Debtor on that ground the petition is liable to be dismissed. The Petitioner made a complaint to the Registrar of Companies (RoC) on similar lines and the same is rejected. Hence this petition is liable to be dismissed on that ground. ii. There is absolutely no document filed to prove the default. A legal notice was issued by the Petitioner on 27.06.2020. Amendment to Section 4 IBC increasing pecuniary jurisdiction is prospective in nature and it came into effect from 24.03.2020. Except the legal notice there is no other document to determine default date. Even the copy of the legal notice is not filed by the Petitioner. iii. The petitioner cannot be termed as Financial Creditor as the debt is not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be triggered. viii. It is false to contend that the Corporate Debtor agreed to issue post-dated cheques and written agreement to the Petitioner on 28.10.2019. The Creditor has to explain why he waited till May, 2021 if really default triggered on 13.02.2018 that too when the Corporate Debtor failed to issue any cheques on 28.10.2019. On the above grounds the Corporate Debtor seeks to dismiss the Petition. 4. The Petitioner filed his reply to the counter of the Corporate Debtor contending as follows: i. The Petitioner has served a legal notice dated 07.06.2020 with a hope that the Corporate Debtor would return the amount with interest. ii. In the wake of Covid-19 pandemic, the Government of India issued a Notification dated 24.03.2020 raising the minimum threshold amount to ₹ 1 Crore from ₹ 1 Lakh. iii. The NCLT, Chennai Bench in the matter of Arrowline Organic Products Private Limited vs. Rockwell Industries Limited, by relying on the judgment of Hon'ble Supreme Court in Bakul Cashew co. Vs. Sales Tax Officer Quilon, held that it is only the Legislature who has the power to make and amend laws and the said power is limited and cannot be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the Petitioner's counsel are in favour of the Corporate Debtor that the notification cannot be applied retrospectively. In the reply written submissions it is contended that the notification issued by the Central Government does not confer power upon the Tribunal to act retrospectively. But the Petitioner's Counsel fails to show that the Petition was filed before the NCLT, Hyderabad Bench prior to the notification. Hence the disputed amount being less than the pecuniary jurisdiction of this Tribunal, the Application needs to be rejected on that count. II. Whether the WhatsApp conversation between the Parties can be admitted as evidence. In order to prove the acknowledgment of debt, the Petitioner relies on the WhatsApp message which is given by one Mr. P.V. Narasimha Rao. The Counsel for the Corporate Debtor raises a serious objection in admitting the said document into evidence on the basis of the judgment rendered by the Hon'ble Supreme Court in Civil Appeal Nos. 20825-20826 of 2017, dated 14.07.2020 between Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors., with Civil Appeal No. 2407 of 2018, Civil Appeal No. 3696 of 2018, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (8) of IBC. It is an admitted fact that the petitioner moved similar petitions before the NCLT, Hyderabad Bench and it is admitted that the facts and issues involved in those cases are the same as in this case. NCLT Hyderabad Bench has dismissed the Petition on the ground that the Petitioner failed to prove that the amount lent to the Corporate Debtor is a financial debt and that the Petitioner is a Financial Creditor. The definition of Financial Debt is incorporated in Section 5 (8) which is as follows: Section 5(8) financial debt : means a debt along with 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 de-materialised 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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