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TMI Blog2019 (4) TMI 2087X X X X Extracts X X X X X X X X Extracts X X X X ..... xure R-I annexed at page 11 of the typed set filed along with the reply is pointed out by the CD. Certain essential conditions are required to be satisfied by a Financial Creditor seeking to invoke the provisions of CIRP as against the CD before this Tribunal taking into consideration Section 5(7), Section 5(8) read with Section 7 of IBC, 2016 can take cognizance of it: i) There must be disbursal of loan amount; ii) Such disbursal should be made for a consideration for time value of money; and iii) A default should have arisen either in the payment of interest or in the payment of principal amount or both on the part of the CD. The above conditions are to be cumulatively satisfied with by the FC before this Tribunal can admit the petition and as a consequence unfold the CIRP as against the CD. However, in the instant case even though disbursal of Rs. 1,00,00,000/- by the FC to the CD is not disputed. However, in relation to whether it is made available for consideration for time value of money as well as in relation to existence of default on the part of CD at the time of initiation of the petition proceedings is vehemently denied by the CD. The petitioner is thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent petition before this Tribunal on the part of the petitioner is stated to be that a sum of Rs. 1,00,00,000/- was disbursed in various tranches between the period commencing from 8th June, 2017 till 12th June, 2017 and that the said sum given by way of loan is repayable on demand along with interest ₹ 15% per annum and that the interest amount in addition to principal in a sum of Rs. 1,00,00,000/- as on 25th December, 2018 amounts to Rs.23,15,753/- and that the total amount due from the CD to the petitioner amounts to Rs. 1,23,15,753/-. It is averred by the petitioner that disbursal of Rs.50,00,000/- each on 8.6.2017 and 12,6.2017 was made which is evidenced from the copies of the bank statement filed along with the petition. That on 7.1.2019 the petitioner/FC sent a recall notice seeking for the repayment of the loan advanced which was due and payable by the CD to the FC and the said recall notice hadbeen duly served upon the CD and the same is marked as Annexure-5. However, no response to the aforesaid recall notice was received from the CD. It is further averment of the petitioner that since the amount was advanced against the time value of money, it is a financial debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within its power to impose upon the FC for initiating these proceedings with a malicious intent and for knowingly providing false information. Taking all the contentions of the respondent/CD, it seeks of this Tribunal to dismiss the petition with exemplary costs. 4. Oral submissions of Ld. Counsel of both the parties were heard in detail during which both the Counsels pointed out towards the documents filed in support of the contentions of the respective parties. Before proceeding to deal with the case on merits, it is first incumbent upon this Tribunal to consider the definition of 'Financial Debt' as well as that of 'Financial Creditor', as provided under the provisions of Section 5(8) and Section 5(7) of IBC, 2016. (7) 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; (8) financial debt means a debt alongwith 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; (b) any amount raised by acceptance under any acceptance credit facility or its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rival contentions of the parties, it is necessary to extract Annexure R-I, as no other document has been produced on the part of petitioner by way of any loan agreement(s) as intended to prevail between the parties to sustain the averments made in the petition. Annexure R-I reads as follows: Our company has given interest free loan of Rs.1,00,00,000/- to M/s. Sivalik Enterprises Private Limited during the financial year 2017-18 and the same amount is outstanding as on 31.03.2018. Our Company has given the said loan for five years and the same is without interest. However, M/s. Sivalik Enterprises Private Limited can suo-moto re-pay the same any time (before five years). Place: New Delhi For Prayag Polytech Private Limited Dated: 28/08/2018 Sd/- Director Milan Aggarwal GST NO.07AAACP1009R3Z9 Pan No.- AAACP1009R 6. During the course of oral submissions, it was also pointed out by Ld. Counsel for the CD that the Director who signed on behalf of FC, namely, Mr. Milan Aggarwal has also filed this petition and sworn affidavit in relation to the petition and the averments contained therein. Ld. Counsel for the petitioner on the other hand points out to the document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of initiation of the petition proceedings is vehemently denied by the CD. The petitioner is thereby required to satisfy this Tribunal that all the above 3 conditions are cumulatively satisfied by furnishing documents to the said effect. However, FC has miserably failed in this respect but on the other hand the document annexed as R-l by the respondent demonstrates it is otherwise. Further, as rightly pointed out by Ld. Counsel for the CD and also brought forth in the earlier portion of the order, Mr. Milan Aggarwal is signatory to both, the resolution marked as Annexure R-I filed along with the reply as well as the affidavit filed in support of the petition on behalf of FC which necessarily connotes that this petition has been filed on false grounds by deliberately not disclosing the resolution signed by the FC to CD marked as Annexure R-I on the part of FC as against the CD. In the circumstances, we do not have any hesitation in dismissing this petition and further we do not have also any hesitation in the absence of default on the part of the CD, in imposing a fine of Rs.1,00,000/- upon the FC for invoking the provisions of IBC, 2016 as against the CD under Section 75 of I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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