9911796707
TMI Blog2022 (9) TMI 1290X X X X Extracts X X X X X X X X Extracts X X X X ..... rated on 24.07.2008. The nominal share- capital of the company is Rs.40,00,000/- and the paid-up share- capital of the company is Rs.39,76,260/-. 4. The principal amount claimed by the Financial Creditor is Rs.1,30,00,000/- along with interest of Rs.1,61,15,155/-.. The debt fell due on 27.02.2017 i.e the date since last payment was received by the Financial Creditor. The name of the Interim Resolution Professional has been proposed in the petition. 5. Submissions on behalf of the Financial Creditor: 5.1 The case of the Financial Creditor is that it provided a loan in the form of Inter Corporate Deposit (ICD) of Rs.2,00,00,000/- on 07.02.2014, amount transferred from their Bank of Baroda Account via RTGS. The said loan amount was disbursed as per mutually agreed rate of interest for a short tenure and was repayable on demand. 5.2 The Corporate Debtor initially failed to repay the same despite repeated reminders. Later, the Corporate Debtor issued three cheques favouring the applicant for an aggregate amount of Rs.1,00,00,000/- towards part repayment of the said ICD. Out of the three cheques, two cheques got cleared on 15.10.2016, but the third cheque i.e cheque no. 000053 for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed by the Financial Creditor. 6.4 The Corporate Debtor was taken over by the present directors in the year December, 2015 and the aforesaid payments to the Financial Creditor have been made by the previous director of corporate debtor Mr. Sumit Agarwal. The previous directors of the Corporate Debtor did not disclose the aforesaid loan provided by the Financial Creditor to the present directors of the Corporate Debtor at the time of takeover. Infact, the present directors of the Corporate Debtor did not have any clue regarding the existence of the purported loan till the time the Corporate Debtor received a notice from the Financial Creditor demanding repayment thereof. 6.5 The Corporate Debtor, upon receiving the said notice, immediately contacted the previous director Mr. Sumit Agarwal. The said Mr. Sumit Agarwal assured to the corporate debtor that there are certain disputes regarding the same and he shall ensure that the same is resolved and the company, being the Corporate Debtor or its existing directors would not be put into any inconvenience. 6.6 It appears from the bank statements filed by the Financial Creditor that certain payments have been made to the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability by the Corporate Debtor of the purported debt. Further, Balance Sheet cannot be construed as admission of liability. The purported audited accounts of the Financial Creditor do not disclose any amount to be payable by the Corporate Debtor to the Financial Creditor. Further, the document annexed at page 111 by the Financial Creditor, purporting to be an annexure to the audited accounts of the Financial Creditor appears to be fabricated. The same is neither a part of the audited accounts, nor is the same signed by the auditor of the Financial Creditor and the same has been produced in a fabricated manner belatedly to take wrongful action and abuse the process of law under the Code. 7 Supplementary Affidavit on behalf of the Corporate Debtor: 7.1 The Corporate Debtor has submitted that subsequent to filing the replyaffidavit, it came to the knowledge of the Corporate Debtor that several documents pivotal for the adjudication of the instant petition had not been annexed with the reply affidavit. Therefore, the instant supplementary affidavit has been filed by the Corporate Debtor, for introducing the said annexures to record. 7.2 The Corporate Debtor has further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agarwal, the erstwhile director had assured the new management that there were certain disputes pertaining to the loan. The said statement itself is sufficient to prove acknowledgement of debt by the Corporate Debtor and its current management. 8.4 The allegation that the Annexure J and K of the petition are fabricated are denied. The said documents are exactly the same as have been uploaded on the MCA website. Only page 111 of the petition is an additional page which was not uploaded on the MCA website. The said page is a detail sheet of various schedules annexed to the financial statements of the Financial Creditor. Such details were not required to be a part of the documents uploaded at the website of MCA, nor required to be countersigned by the auditors. However, a certificate from the statutory auditors who have signed the financial statements is attached to this rejoinder and marked as Annexure 1. 8.5 It has been alleged that the Auditor's Report does not specify any loans or advances granted to the Corporate Debtor. However, the said allegation is misconceived because the Auditor's report will report only those loans/ advances which violates the provisions of section 185 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 14 of its supplementary affidavit.. Further, repayments have been made by the Corporate Debtor to the bank account of the Financial Creditor. As such, it can be concluded that a financial debt does exist in favour of the Financial Creditor from the Corporate Debtor. 9.4 The Corporate Debtor has contended that the instant petition is barred by limitation. Regarding the payments made to the Financial Creditor after 2015 i.e after the takeover of the Corporate Debtor, the Corporate Debtor has contended that the said payments were made by the erstwhile directors by operating the accounts of the Corporate Debtor without the knowledge of the present board of directors. Even if the said contention is taken to be true, the same is a matter of internal management and will not put an end to the Corporate Debtor's liability towards the Financial Creditor. The disputed payments were made in 15.10.2016, 23.02.2017 and 27.02.2017. According to section 19 of the Limitation Act, 1963, when payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period of limitation, by the person liable to pay the debt or legacy or by his agent duly authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under Sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be." (Para 28) 9.10 The Apex Court, in the matter of Innoventive (supra), further held that: "On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is "due" i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the IRP within one week from the date of receipt of this Order, in default of which coercive steps will follow. g) The IRP/RP shall submit to this Adjudicating Authority periodical reports with regard to the progress of the CIRP in respect of the Corporate Debtor. h) The Financial Creditor shall deposit a sum of Rs. 3,00,000/- (Rupees Three lakh only) with the IRP to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). i) In terms of section 7(5)(a) of the Code, Court Officer of this Court is hereby directed to communicate this Order to the Financial Creditor, the Corporate Debtor and the IRP by Speed Post, email and WhatsApp immediately, and in any case, not later than two days from the date of this Order. j) Additionally, the Financial Creditor shall serve a copy of this Order on the IRP and on the Registrar of Companies, West Bengal, Kolkata by all available means for updating the Master Data of the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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