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TMI Blog2022 (6) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... (IBC) by Gateway Offshore Private Limited and Anr. ("the Financial Creditors or FC"), seeking to initiate Corporate Insolvency Resolution Process (CIRP) against Runwal Realtors Private Limited ("the Corporate Debtor or CD"). 2. The present Petition was filed on 05.03.2019 before this Adjudicating Authority on the ground that a loan for a sum of Rs.4,43,00,000/- (Rupees Four Crore Forty-Three Lakh Only) was advanced by the Financial Creditors i.e. (Rs.1,50,00,000/- from Petitioner No.1 and Rs.2,93,00,000/- from Financial Creditor No.2) along with interest at the rate of 9 % p.a. to the Corporate Debtor and the Corporate Debtor has defaulted in repayment of the same. 3. The total amount claimed to be in default by the Financial Creditors is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80,00,000/- 8. 20.06.2017 50,00,000/- 9. 21.06.2017 8,00,000/- 10. 05.07.2017 10,00,000/- 11. 07.07.2017 15,00,000/- Total 2,93,00,000/- 6. The copies of Statement of Accounts for the period of 01.06.2017 to 30.06.2017 of both the Financial Creditors are placed at "Exhibit B and B1" respectively. Further, the Corporate Debtor issued confirmation of accounts letters dated 01.10.2020 addressed to the Financial Creditors. 7. The Corporate Debtor was liable to repay the loan amount of Rs.4,43,00,000/- along with interest at the rate of 9% p.a. on or before June 2018. Therefore, the Financial Creditors addressed letters dated 03.07.2018 to the Corporate Debtor demanding repayment of the loan advanced cumulatively amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transaction between the parties does not classify as a Financial Debt. 13. Moreover, it is the case of the Corporate Debtor that Financial Creditors has disbursed the said amount for joint development of land owned by the Corporate Debtor. Further, the Financial Creditors were liable to contribute Rs.17 Crore out of which only Rs.4,43,00,000/- has been paid to the Corporate Debtor. Accordingly, the Corporate Debtor has raised a counter claim for the remainder amount. 14. Further, the Corporate Debtor states that the Financial Creditors have not relied upon any loan agreement or any communication in the form of letters, emails etc. for the purpose of substantiating the claim. The Financial Creditors don't have license to operate as no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess." 16. The Corporate Debtor placed reliance upon the Order of Principal Bench in the case of Carnoustie Management India Pvt. Ltd. vs CBS International Projects Private Limited Company Petition No.(IB) 792(PB)/2018 : "35. A Creditor in order to come within the meaning of Financial Creditor has to fulfill the following essential criteria: i. A person to whom a financial debt is owned and includes a person whom such debt has been legally assigned or transferred; ii. The debt along with interest, if any, is disbursed against the consideration for time value of money and includes any one or more mode of disbursed as mentioned in clause (a) to clause (i) of sub-section (8) of section 5." "36. Mere grant of loan and admission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no written contract regarding any loan being sanctioned to the Corporate Debtor by the Financial Creditors. In this regard, we would like to rely on the stand taken by the NCLAT in Narendra Kumar Agarwal and Ors. v Monotrone Leasing Private Limited and Ors. (Company Appeal (AT) (Insolvency) No. 549 of 2020 (NCLAT; Order dated 19.01.2021) wherein it was held that the written contract cannot be treated as an essential element or prerequisite to prove the existence of Financial Debt (Para 11). 21. However, the Financial Creditor has failed to bring on record any other evidence in the form of a loan agreement, promissory note, contract or any document to substantiate its claim that there was a financial debt and a default of the same. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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