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TMI Blog2019 (6) TMI 1661X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the Respondent in settling the dues of Rs. 1,88,33,978/- including the interest component towards the financial credit lent by the Applicant. The transactions leading to the filing of this application and the averments made by the Applicant are as follows: i. The Applicant agreed to advance certain amount as loan to the corporate debtor. The said loan was repayable on demand along with interest. The financial creditor disbursed the amount as debt to the corporate debtor from time to time, in various tranches. ii. The financial creditor sent a recall notice dated January 2, 2019 to the Corporate debtor requesting the corporate debtor to repay the amount of loan advanced which was due and paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Respondent, and therefore does not have the requisite locus standi to prefer the present application. ii. Mr. D.K. Aggarwal, the managing director of M/s. Prayag Polytech Private Limited, the petitioner herein approached the respondent company and informed that the petitioner company was having excess funds than required for their business needs and expressed to the respondent that the petitioner intends to invest the same in respondent company on a long term basis for a period of more than 10 years. The said Mr. D.K. Aggarwal also requested and required the respondent to see the possibility of admitting the petitioner company as one of the partners or the possibility of taking the said money on investment basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terregnum period from May 2017 to March 2018 in the books of account of the respondent company and that too be added to the proposed investment and not to be paid to the Petitioner company. vii. On the said representation, the respondent company passed entries in their books of account and accordingly remitted TDS in the name of the Petitioner company and showed the said money as interest accrued as long-term liability, viii. No borrowing was ever sought by the Respondent Company from the petitioner at any time nor any financial debt was given by the petitioner company to the respondent. ix. It is further submitted that the respondent is ready and willing at all times to induct the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed with ROC for the reason that the said amount has been reflected under the long-term borrowings. 3. Oral submissions of Ld. Counsel of both the parties were heard in detail during which both the Counsels pointed out towards the documents filed in support of the contentions of the respective parties. Before proceeding to deal with the case on merits, it is first incumbent upon this Tribunal to consider the definition of 'Financial Debt' as well as that of 'Financial Creditor', as provided under the provisions of Section 5(8) and Section 5(7) of IBC,2016. (7) "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) and (zn) of section 2 of the real estate (Regulation and Development) Act, 2016 (16 of 2016)] (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintained by the ROC to support its claim of remittance by way of loan and tenure of the loan and interest payable by the respondent has been produced. Further the petitioner has also not placed on record the following relevant documents i.e, documents/ resolutions passed by the board for remitting the said amount, registers maintained at the company as are required under sec 186(9) of the Companies Act, 2013, balance sheet and other financial statements related to the transactions. 6. In the circumstances, we do not have any hesitation in dismissing this petition and further we do not have also any hesitation in the absence of establishing a default on the part of the CD by the Petitioner, in imposing a fine of Rs. 1,00,000/- upon the FC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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