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TMI Blog2022 (5) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... e invoked, no notice was given to the Corporate Debtor. This appears to us to be a petition filed for the purposes other than for resolving the insolvency of the Corporate Debtor. Such purposes are to be frowned upon under the Code - Petition dismissed. - CP (IB) No. 1113/KB/2019 - - - Dated:- 18-5-2022 - Rajasekhar V.K., Member (J) And Balraj Joshi, Member (T) For the Appellant : Rishav Banerjee, Ayan Dutta, Abhishek Sikdar and Pallavi Ray, Advocates For the Respondents : Aparijita Rao and Sanwal Tribrewal, Advocates ORDER Rajasekhar V.K., Member (J) 1. This Court convened through video conferencing. 2. This is a Company Petition filed under section 7 of the insolvency and Bankruptcy Code, 2016 by Ashish Vin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 20,00,000/- each (Rupees Twenty Lakh only) with the State Bank of India in the year 2015 as collateral security for the cash credit limit given by State Bank of India to the Corporate Debtor. 6. The Corporate Debtor failed to repay the loan and the State Bank of India encashed the four fixed deposits of the Financial Creditor that were pledged with State Bank of India. 7. Mr. Rishav Banerjee submitted that the fixed deposits were given as collateral security for the cash credit facility extended by the State Bank of India to the Corporate Debtor, hence, the fixed deposits can be considered as guarantee as defined under section 126 of the Indian Contract Act, 1872. 8. The learned Counsel led us through section 140 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor 13. Ms. Aparijita Rao submitted that the said petition is not maintainable as the Corporate Debtor did not enter into any agreement with the Financial Creditor nor did the Financial Creditor disburse any amount against consideration of time value of money. The claim cannot be considered as a financial debt under section 5(8) of the Code. 14. No money was disbursed to the Corporate Debtor by the Financial Creditor against consideration for the time value of money. 15. Further, the plea that the Corporate Debtor assured payment of additional interest of 10% per annum towards the fixed deposits in lien to the State Bank of India is misleading. The Financial Creditor has failed to produce any written contract reflecting that the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. Ms. Aparijita Rao then placed reliance on the judgment passed by Hon'ble NCLAT in Neeraj Bhatia v. Davindar Ahluwalia Ors. decided on 09 February 2018, wherein it was held that a guarantor cannot claim to be a Financial Creditor as defined under section 5(7) read with section 5(8) of the Code, till it is shown that the payment made by the guarantor to the Financial Creditor pursuant to contract of guarantee towards loan availed by the principal debtor from the Financial Creditor is a debt. Submissions of Mr. Rishav Banerjee, in rejoinder to the reply of the Corporate Debtor. 22. Mr. Rishav Banerjee urged us to consider section 5(8)(h) of the Code wherein it envisaged a financial debt includes any counter-indemnity obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 2015. On perusal of the master data of the Corporate Debtor, we find that Mr. Ashok Kumar Agarwal is still listed as the Director of Corporate Debtor. If Mr. Ashok Kumar Agarwal had infact resigned from the post of Directorship on 30 June 2015, because he was kept in the dark by the other Directors of the Corporate Debtor, wouldn't he have pursued his resignation and filed the necessary documents with the Registrar of Companies, Jharkhand at the earliest. 30. The Financial Creditor did not place any document on record wherein the Financial Creditor sought to recall the amount that was invoked. No document has been filed to show that there has been any sort of communication between the Corporate Debtor and the Financial Creditor. He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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