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TMI Blog2021 (1) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... e For the respondent : Mr. Subhash Saini, Practising Company Secretary JUDGEMENT Per: Ajay Kumar Vatsavayi, Member (Judicial) The application in the prescribed Form No.1 is filed by Surinder Kumar Singal (hereinafter referred to as Petitioner) for initiation of Corporate Insolvency Resolution Process (CIRP) in the case of Aarkay Innovations Limited (hereinafter referred to as Corporate Debtor). The application is filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules). 2. The master data of the Corporate Debtor is stated to be filed at page 15 of the petition. The Corporate Debtor is stated to be incorporated on 30.12.1994 and the registered address is stated to be SCO 15, Sector 26, Chandigarh. Therefore, the jurisdiction lies with this Bench of the Tribunal. 3. It is stated that the petitioner has given unsecured loan to the corporate debtor from time to time with effect from 07.09.2016 and the corporate debtor has been repaying part of these unsecured loans to the petitioner. It is further stated that as on 20 April 2017, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The statements of interest accrued and TDS deducted for the period 01.01.2018 to 30.09.2018 along with the Cheques issued in favour of the petitioner for the same are also attached at Annexures A-9, A-10 A-11 of the petition. Form 26AS of the petitioner for the Assessment Year(s) 2018-19 2019-20 are also found to be attached as Annexure A-12 A-13 in support of the above claimed amount. 8. In Part-III of Form No.1, Mr. Vishawjeet Gupta, Registration No. IBBI/IPA-002/IP-N00215/2017-18/10667 has been proposed as Interim Resolution Professional (IRP). Form No. 2 dated 21.02.2019 submitted by the proposed IRP is stated to be attached as Annexure A-3 of the petition. 9. The Corporate Debtor has filed reply vide diary No.2800, dated 03.06.2019. It is submitted that the Corporate Debtor was availing credit facilities from Corporation bank but later on the credit facilities were taken over by HDFC bank and for that purpose, the promoter s margin was brought in by the promoters/directors including the Petitioner s contribution from time to time in the form of share capital and unsecured loan. It is stated that the petitioner only inducted part of his obligation for meeting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her any written document such as Loan Agreement nor even any resolution passed by Board of Directors of the Corporate Debtor regarding the payment of interest. It is pleaded that the Petitioner is not entitled for any interest on the Promoters obligation contributed in the shape of Unsecured Loan and no withdrawal would be permitted during the currency of the overdraft. It is also mentioned that the rate of interest has been decided mutually between the Promoters including the Petitioner and Corporate Debtor kept on paying till 30.09.2018. 11. Rejoinder was filed vide Diary No. 2878 dated 07.06.2019. It is stated that the petitioner is a director of the respondent company since 25.05.2009 and the petitioner was neither a subscriber to the Memorandum and Articles of Association of the corporate debtor and nor the petitioner was named one of the first directors of the company at the time of incorporation. It is also contended that the petitioner was only allotted 100 shares much later sometime in 2014-15 and out of total 98610 equity shares of the corporate debtor, the petitioner owns only 100 shares which constitute 0.1% of the total shares of the corporate debtor. It was denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the corporate debtor from 10.01.2007 to 31.03.2010 are attached as Annexure A-19 (Colly) of the petition. 14. We have heard the learned counsel for the petitioner the authorised representative for the Corporate Debtor and have also perused the record carefully. 15. Section 7(5)(a) of the Code is as follows:- (5) Where the Adjudicating Authority is satisfied that- (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application. 16. In the present case, this petition under Section 7 has been preferred by the petitioner, who also seems to be one of the directors of the corporate debtor, against the corporate debtor for default in the payment of interest beyond 30.09.2018 on unsecured loans granted by the petitioner from time to time since 2017. 17. It is the case of the petitioner that the corporate debtor owes ₹ 1.95 crores as the principal amount to the petitioner/ financial creditor and the interest has been regularly paid by the corporate debtor on ₹ 1.75 crores on quarterly basis until ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Mr. Surender Kumar Singal (Petitioner) which amounts to acknowledgement of liability on the part of the Corporate Debtor and is admission of the debt. This submission of the petitioner is unsustainable in view of the decisions of Hon ble NCLAT in G. Eshwara Rao Vs. Stressed Assets Stabilization Fund and another, CA No. 1097/2019 dated 07.02.2020 and V. Padmakumar Vs. Stressed Assets Stabilization Fund, CA No. 57/2020 dated 12.03.2020 (Five Judges Bench). The decision in V. Padmakumar was reaffirmed by another Five Judges Bench judgment in Bishal Jaiswal Vs. Asset Reconstruction Company (India) Limited, CA No. 385/2020 dated 22.12.2020. 24. The Petitioner has also submitted its Form 26AS for Financial Year(s) 2017-18 2018-19 in support of its application wherein the TDS has been deducted on the interest paid by the Corporate Debtor under Section 194 A (Interest other than securities) of the Income Tax, 1961. Form 26 AS here implies that the Corporate Debtor has been deducting TDS on the interest component paid to the petitioner for the relevant years and the same is not disputed as well. 25. The Respondent-Corporate Debtor in relation to the above assertion has placed r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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