9911796707
TMI Blog2022 (8) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.03.2022 passed by the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench, Bengaluru) in CP (IB) No. 09/BB/2022, whereby the Adjudicating Authority admitted the Application filed by the Respondents herein and declared moratorium in terms of Section 14 of the I&B Code, 2016. Brief Facts: Appellant's Submissions: 2. The Learned Counsel for the Appellant submitted that the Appellants are Shareholders of the Corporate Debtor i.e. Respondent No.10 herein and collectively hold 1% of the total shareholding of the Company. It is submitted that the Respondents in a suspiciously and in a fraudulent manner executed unsecured loan Agreements dated 04.12.2019 advancing an amount of Rs.34,73,54,802/- to be repaid by the Corporate Debtor on or before 31.12.2019 i.e. within a span of 27 days. The Respondents filed an Application under Section 7 of the I&B Code, 2016 on 25.12.2021 which is an act of collusion. The Corporate Debtor filed an Affidavit vide Diary No. 545 dated 14.02.2022 whereby it is averred that the Corporate Debtor has availed secured loan from Bijapur District Central Co-operative Bank Limited, Karnataka State Co-operative, Apex Bank Limited and unsecured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion seeking to initiate CIRP proceedings against the Corporate Debtor and the same cannot be alleged or termed as a collusive act. The Corporate Debtor is duty bound to repay the amount borrowed from the Respondents to the tune of Rs.34,73,54,802/- and which is clearly over and above the threshold limit of Rs.1 crore to initiate CIR process. 7. It is submitted that with regard to the averments made by the Appellants with respect to disbursement made by the Respondents to the Corporate Debtor, it is an undisputed fact that the financial debt was availed by the Corporate Debtor. It is not the case of the Appellants that the Corporate Debtor never borrowed monies from the Respondents herein. Further, the Corporate Debtor in fact admitted the debt owed to the Respondents in the Written Submissions filed before the Hon'ble Adjudicating Authority. Further, the Appellants have also in their Grounds of Appeal at Page 25 at Para-IV given in a tabular format the details of the loan received by the Corporate Debtor and as evident from the balance sheet and the annual returns of the Corporate Debtor. 8. It is submitted that the NeSL Certificate obtained by the Respondents, clearly establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urred thereto in repayment of debt to the Financial Creditors. In view of the reasons the Adjudicating Authority admitted the application filed by the Respondents/Financial Creditors. 14. This Tribunal perused Form-1 filed by the Respondents/Financial Creditors at Part-IV the total amount of financial debt shown as Rs.34,73,54,802.00 and stated that the debt was to be repaid on or before 31.12.2019 in accordance with the respective loan agreements executed between the parties. In Part-IV the details of financial debt and default has been given in a tabular column at page 62-63 of the Appeal paper book. Further, in column 2 at Part-IV of the Form-1 shows the date of default as 31.12.2019. This Tribunal has perused the loan agreements executed between the Respondents/Financial Creditors and the Corporate Debtor which are annexed from page 251 onwards in Volume-2 of Appeal paper book. The loan agreements all dated 04.12.2019 and the amounts have been specifically mentioned in each of the loan agreement, whereby the Corporate Debtor agrees to repay the loan amount within 30 days from the date of the loan agreement which was payable @ 8% per annum beginning from 04.12.2019. Further all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed. 17. Further, Sub-section (11) of Section 3 defines debt "means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt". Sub-section (12) of Section 3 defines "default means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the Corporate Debtor as the case may be". 18. Sub-section (7) of Section 5 defines "Financial Creditor" means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. Sub-section (8) of Section 5 defines "Financial Debt" means a debt along with 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. 19. In the present case, admittedly, the Respondents are the Financial Creditors within the meaning of sub-section (7) of Section 5 of the I&B Code, 2016 and the debt borrowed by the Corporate Debtor is a financial debt within the meaning of sub-section (8) of Section 5, which establishes from the loan agreements all dated 04.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
