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TMI Blog2022 (10) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... t financial creditor has failed to prove Inter Corporate Deposit given to the Corporate Debtor, which finding is unsustainable. It is also relevant to notice that Corporate Debtor has also made payments in the years 2015, 2016, 2017 till the financial year 2018-19 which details are all mentioned in the Part IV of the application. It is further relevant to notice that Corporate Debtor although once appeared before the Adjudicating Authority but neither filed any reply nor appeared thereafter and Adjudicating Authority proceeded ex-parte against the Corporate Debtor. In this appeal also despite service of notice, Corporate Debtor did not appear. There is not even dispute to allegations and case set up by the Financial Creditor against the Corporate Debtor. The Adjudicating Authority committed error in rejecting Section 7 application - appeal allowed. - Company Appeal ( AT ) ( Insolvency ) No. 475 of 2022 - - - Dated:- 12-10-2022 - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Ms. Neha Somani , PCS JUDGMENT ASHOK BHUSHAN , J. This appeal by the Financial Creditor has been filed against the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were issued to the Corporate Debtor on 04.05.2022. Although notices were served but no one appeared nor any reply was filed. 3. We have heard Ms. Neha Somani, Authorized Representative of the Appellant on 28.09.2022. None had appeared for the Respondent. Learned Authorized Representative of the Appellant challenging the order passed by the Adjudicating Authority submits that the Adjudicating Authority erred in not taking into consideration the acknowledgements in writing issued by the Corporate Debtor where debt was acknowledged. It is submitted that the Adjudicating Authority also erred in observing that in the Independent Auditor s Report of the Financial Creditor for Financial Years 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 names of the companies to whom Financial Creditor has advanced Inter Corporate Deposit are distinctly mentioned whereas there is no mention with regard to the Corporate Debtor. It is submitted that the mention of names of those few companies was made against whom litigations were going on and the total of Inter Corporate Deposit given by the Financial Creditor were mentioned. Further, all details of the dues in a tabular chart has been mentioned. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ratnakar Bank Ltd for Rs. 25 Crore (Rupees Twenty Five Crore only) towards the said ICD. Our PAN is AACCP3995N. You are requested to acknowledge the receipt of the same. Thanking you Yours faithfully For Adventz Investments Holdings Ltd. 6. The Financial Creditor has also brought on record the Bank Statement to prove that in pursuance of the communication dated 16.05.2014 an amount of Rs.25 Crore was deposited in the account of the Corporate Debtor. The Inter Corporate Deposit with the terms and conditions as contained in the both the above letters clearly prove that financial facility by Inter Corporate Deposit was extended by the Financial Creditor. In the Part IV of the application there is a specific reference of legal notice dated 04.01.2016 issued on behalf of the Financial Creditor to the Corporate Debtor where it was mentioned that a sum of Rs.4,03,17,465/- is due towards interest. The Corporate Debtor was called upon to pay the interest on the said corporate deposit since 01.10.2014. The legal notice was replied by the Corporate Debtor by letter dated 03.02.2016 which is also part of Section 7 application. In the reply dated 03.02.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters issued by the Corporate Debtor there is a clear acknowledgement of debt. The Adjudicating Authority had not adverted to aforesaid materials before coming to the conclusion that there is no acknowledgement of the Inter Corporate Deposit in the Independent Auditor s Report of the Financial Creditor for Financial Years 2014-15 to 2018-19. 8. Now coming to the Independent Auditor s Report of the Financial Creditor which has relied by the Adjudicating Authority in Para 9, it is relevant to notice that there is mention of name of certain companies in the Independent Auditor s Report. For example: at page 160, Para 2.28 (FY- 2014-15), following has been stated:- 2.28 The company has given Inter-Corporate Deposits of Rs. 2 crores to M/s . Chopra Marketing Private Limited, Rs.7 crores to Enso Private Limited and Rs.2.30 crores to Birla Power Solutions Limited. Since the amounts were not refunded by the said parties on time, the Company has filed legal cases at Division/High Court at Calcutta/ Bombay for recovery of the said amount. Necessary provisions have been made in the accounts. 9. Similarly, there is mention of certain other companies at page 181 (para 2.21, FY 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prove Inter Corporate Deposit given to the Corporate Debtor, which finding is unsustainable. 11. Now, we come to the observation of the Adjudicating Authority that there is no date of default mentioned in the application. In the Part IV Item No.2 under the column Amount claimed to be in default and the date on which the default occurred , following has been stated:- 2. AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED AMOUNT CLAIMED TO BE IN DEFAULT Rs. 4,05,51,038/- (Rupees Four Crores Five Lakh Fifty One Thousand and Thirty Eight only) Rs.1,18,50,000/- on account of principal, ii) Rs.2,87,01,038/- on account of interest. DATES ON WHICH THE DEFAULT OCCURRED On 31-03-2015, interest to be received was Rs.3,27,48,287/- out of which only Rs.1,31,14,726/- was received and balance Rs.1,96,33,561/- was in default. On 31-03-2016, total outstanding interest was Rs.35,10,16,758/- out of which only Rs.54,00,000/- was received and balance Rs.4,56,16,758/- was in default. On 31-03-2017, total outstanding interest was Rs.6,62,57,905/- out of which only Rs.2,75,56,867/- was received and balance Rs.3,87,01,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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