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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 ..... spondent contends that as per section 7 of IBC read with section 3(13), no default could have been committed on the date of petition and therefore no cause of action arose on the date of filing of the petition. Further as per section 3(12) default means non- payment of debt/amount which has become due - In the present case the amount had not become due as it was Long Term borrowings and was to be returned only after 10 years. The tribunal is required to be satisfied that indeed a default has occurred in relation to a financial debt owed which has to be based on the documents produced by the petitioner, which is missing in the present case. Also, no resolution as passed by the corporate debtor or relevant entry in register of charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 payable by him to the financial creditor. iii. A true copy of the recall notice dated January 2,2019 along with the speed post receipt and tracking report is annexed with the petition and to the dismay of the Financial Creditor, no response to the recall notice was given by the Corporate debtor. iv. That, the amount of the financial debt is recorded in the balance sheets of the corporate debtor and form 26 AS o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 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 and the return is to be linked to the profits of the company in the equal ratio with the existing partners. All these representations took place in the presence of the partners of the respondent company and some others who are known to both the parties. iii. Believing the said representation made by the petitioner company through its managing director Sri. D.K. Aggarwal, the respondent company informed the said Sri. D.K. Aggarwal that they will consider the proposal and to have further discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner company as partner in consideration of the money remitted in pursuance of the representations made by the said managing director of the petitioner company. x. It came to the notice of the respondent that disputes arose between two sets of directors of the petitioner company and in the process they were trying to evade the obligations of the company under the earlier contracts and the present petition is result of the said disputes between the directors of the petitioner company. The present proceedings are being abused for recovery of amount which they are not entitled a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (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 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 Account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is disbursed against the - consideration for the time value of money. It is also required to be noticed that under the provisions of Section 7 of IBC, 2016 the FC is entitled to initiate the CIRP against the CD when a default has occurred on the part of CD in relation to the repayment of financial debt owed to FC. 5. The arguments were heard and order was reserved on 24.04.2019. Both the Respondent and the petitioner have filed their written submissions on 22.04.2019 which were also taken into consideration. We have gone through the documents filed by both the parties and heard the arguments made by both the counsels. The Respondent contends that as per section 7 of IBC read with section 3(13), no default could have been committed on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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