9911796707
TMI Blog2022 (4) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... is stated that an amount of ₹ 79,66,21,750/- is due and payable by the Corporate Debtor . Be that as it may, it is not within the domain of the Adjudicating Authority to decide the amount of debt at the stage of admission of Section 7 Application. Quantum of payment of debt - HELD THAT:- The same does not fall for consideration before the Adjudicating Authority at the stage of admission of the Application under Section 7 of the Code. The only requirement is that the minimum outstanding debt should be more than the threshold amount provided for under the Code. The actual amount of Claim is to be ascertained by the Resolution Professional after collating the Claims and their verification which comes at a later stage - this Tribunal is satisfied that there is an admission of debt and default as defined under the Code - there are no illegality or infirmity in the Impugned Order. Appeal dismissed. - COMPANY APPEAL (AT) (INSOLVENCY) No. 996 of 2021 - - - Dated:- 11-4-2022 - [Justice Ashok Bhushan] Chairperson , [Dr. Alok Srivastava] Member (Technical) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Vishesh Kalra and Mr. Ayush Puri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UTI assigned its debt to the first Respondent. It is submitted that on 09/02/2016 a Demand Notice was issued by the first Respondent under Section 13(2) of the SARFAESI Act, 2002 demanding an amount of ₹ 79,80,00,00,000/- and subsequently on 24/06/2016, the first Respondent took over the possession of the Immovable Property of the Corporate Debtor . Learned Counsel however submitted that in May 2012, the first Respondent received 18.54% of shares of the sale of property and also other sum(s) on sale of hypothecated assets. On 06/11/2018, the first Respondent filed Section 7 Application under the Code. 5. The Adjudicating Authority has failed to consider that the only acknowledgement of debt by the Corporate Debtor is to the tune of ₹ 10,62,92,521/-, as per the Balance Sheet for the year ending 2017 and ₹ 7,77,39,275/- as per the Balance Sheet for the year ending 2021. It is strenuously argued by the Learned Counsel for the Appellant that there being no acknowledgement of any interest as claimed from 2002, the claim for the interest is completely time barred and the Adjudicating Authority has failed to consider that the first Respondent has approached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006. It is not in dispute that the Corporate Debtor has failed to pay the instalment as per the terms of the Financial Facility. 10. Addressing to the issue of Limitation raised by the Counsel for the Appellant, this Tribunal on a bare perusal of the Balance Sheets for the period from 31/03/2003 till 31/03/2019 observe that there is an acknowledgment of debentures of amount of ₹ 5,00,00,000/-. The Auditor s Report accompanying the Financial Statements and Balance Sheet as on 31/03/2017 show that there is an acknowledgement of debentures and also the default in respect thereof for ₹ 10,62,92,521/- due to be paid to the first Respondent. The Auditor s Report accompanying the Financial Statement and Balance Sheet for the year ending 2019 show that though acknowledgment of penal interest of ₹ 2,38,62,89,435/- is due from various secured borrowings of the Corporate Debtor , the same is not provisioned. It is significant to mention that the Adjudicating Authority in their Order dated 21/01/2019 has recorded that the Counsel for the Corporate Debtor accepts the liability as well as default and submits that there is a likelihood of settlement in this matter and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years, in which case the period of limitation would get extended by a further period of three years. (Emphasis Supplied) Keeping in view the ratio of the aforenoted Judgement we hold that the Application filed under Section 7 is not barred by Limitation . 11. Learned Counsel for the Respondent drew our attention to Clause (L) of the Assignment Agreement dated 04/12/2014 which describes Financial Assistance as follows: Financial Assistance means all the amount due by the Borrower in respect of the financial Assistance including subscription of 19% (later changed to 17.5%) 5,00,000 number of Secured Redeemable Non Convertible Debentures of ₹ 100/- each aggregating to ₹ 500 Lacs availed by the Borrower from the Assignors under or pursuant to the Financing Documents including principal, interest, compound interest and all other monies whatsoever stipulated in or payable by the Borrower in respect thereof, together with any Security Interest, if any, created to secure the repayment of the same and all the right, title and interest of the Assignors therein and pursuant to the Financing Documents and/or any guarantee issued in relation thereto. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls us that a debt means a liability of obligation in respect of a claim and for the meaning of claim , we have to go back to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5 (21) means a claim in respect of provision of goods or services. 28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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