9911796707
TMI Blog2022 (12) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as to whether these were the agreed term between the parties at the time when document was executed or were later on incorporated. Be that as it may, the intercorporate deposit is a loan is not substantiated by the Appellant. There is no error found in the finding recorded by the Adjudicating Authority particularly in para 7 of the impugned order in which all aspects of the matter have been discussed. Appeal dismissed. - Company Appeal (AT) (Ins.) No. 46 of 2020 - - - Dated:- 9-12-2022 - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) And [ Mr. Kanthi Narahari ] Member ( Technical ) For the Appellant : Ms. Shruti Agarwal , Adv For the Respondent : Mr. Manoj K. Singh, Ms. Vijaya Singh, Mr. Rahul Kanoujia, Mr. Anuj Jain, Mr. Priyanshu Upadhyay, Advocates. JUDGMENT Per : Justice Rakesh Kumar Jain: This appeal is directed against the order dated 26.11.2019, passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench) in CP (IB) No. 1387/KB/2018, by which an application filed by the Appellant (Financial Creditor) under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short Code ) read with Rule 4 of the Insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt failed to produce any proof of the RTGS by way of bank statement indicating that the amount has in fact been transferred from its account to the account of the Corporate Debtor. The acknowledgement dated 25.10.2017 has been disbelieved on account of interpolation as it has been held that it is partly typed and partly handwritten document. That the date 25.10.2017, interest part 16.5% and PAN Number have all been written in hand which is found to be added later on after the execution of the document and thus, the Adjudicating Authority did not repose confidence in the said document about its authenticity. In so far as the post-dated cheque no. 000117 dated 23.01.2018 is concerned, which was allegedly issued by the Respondent to the Appellant, in lieu of payment of the amount in question, was not annexed or produced before the Adjudicating Authority. The Adjudicating Authority also did not accept it to be a prudent move on the part of the Appellant to return the post-dated cheque without insisting upon a fresh cheque for the fresh transaction as it has been done earlier when it is alleged that not only the post-dated cheque was obtained by the Appellant but also an acknowledgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make an application for initiating the corporate insolvency resolution process against a corporate debtor under section 7 of the Code in Form 1, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) Where the applicant under sub-rule (1) is an assignee or transferee of a financial contract, the application shall be accompanied with a copy of the assignment or transfer agreement and other relevant documentation to demonstrate the assignment or transfer. (3) The applicant shall dispatch forthwith, a copy of the application filed with the Adjudicating Authority, by registered post or speed post to the registered office of the corporate debtor. (4) In case the application is made jointly by financial creditors, they may nominate one amongst them to act on their behalf. 3. Form-1 is the printed performa of the application which has five parts. Part-1-particulars of the Applicant. Part-2-particulars of Corporate Debtor. Part-3-particulars of proposed IRP. Part-4-particulars of financial debt. Part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefrom as opposed to a sum of Rs. 40,685/- Ever since 31st March, 2018 there has been no payment made towards the principal amount and/or the interest. Copies of the ledger as maintained by the Financial Creditor alongwith Form 26AS of the Financial Creditor reflecting the TDS paid by the CD are annexed hereto and are collectively marked with the letter D 2. Amount claimed to be in default and the date on which the default occurred (attach the workings for computation of amount and days of default in tabular form) The CD owes to the financial creditor a sum of Rs. 10,00,000/- alongwith interest @ 16.5% per annum till payment. The default of the said amount has taken place from the 25th April, 2018. A copy of the tabular statement reflecting the amount due as on date is annexed hereto and is marked with the letter E Pg. 13. 6. It is argued by Counsel for the Appellant that the application under Section 7 was decided on 26.11.2019 but the proposed IRP who had given the consent in Form-2 intimated the Adjudicating Authority but the same was not taken into consideration. It is thus submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financial creditor referred to in the first and second provisos and has not been admitted by the Adjudicating Authority before the commencement of the Insolvency and Bankruptcy Code (Amendment) Act, 2020, such application shall be modified to comply with the requirements of the first or second proviso within thirty days of the commencement of the said Act, failing which the application shall be deemed to be withdrawn before its admission.] Explanation.-For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be prescribed. As per section 7(2), the application has to be filed in the prescribed form which is provided in Rule 4 of the Rules. The form is also reproduced as under: Part-I PARTICULARS OF APPLICANT (PLEASE PROVIDE FOR EACH FINANCIAL CREDITOR MAKING THE APPLICATION) 1. NAME OF FINANCIAL CREDITOR 2. DATE OF INCORPORATION OF FINANCIAL CREDITOR 3. IDENTIFICATION NUMBER OF FINANCIAL CREDITOR 4. ADDRESS OF THE REGISTERED OFFICE OF THE FINANCIAL CREDITOR 5. NAME AND ADDRESS OF THE PERSON AUTHORISED TO SUBMIT APPLICATION ON ITS BEHALF (ENCLOSE AUTHORISATION) 6. NAME AND ADDRESS OF PERSON RESIDENT IN INDIA AUTHORISED TO ACCEPT THE SERVICE OF PROCESS ON ITS BEHALF (ENCLOSE AUTHORISATION) Part-II PARTICULARS OF THE CORPORATE DEBTOR 1. NAME OF THE CORPORATE DEBTOR 2. IDENTIFICATION NUMBER OF CORPORATE DEBTOR 3. DATE OF INCORPORATION OF CORPORATE DEBTOR 4. NOMINAL SHARE CAPITAL AND THE PAIDUP SHARE CAPITAL OF THE CORPORATE DEBTOR AND/OR DETAILS OF GUARANTEE CLAUSE AS PER MEMORANDUM OF ASSOCIATION (AS APPLICABLE) 5. ADDRESS OF THE REGISTERED OFFICE OF THE CORPORATE DEBTOR 6. DETAILS OF THE CORP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served a copy of this application by registered post/speed post/by hand/electronic means to the registered office of the corporate debtor and to the board]. Yours sincerely, Signature of person authorised to act on behalf of the financial creditor Name in block letters Position with or in relation to the financial creditor Address of person signing Instructions Please attach the following to this application: Annex I Copies of all documents referred to in this application. Annex II Written communication by the proposed interim resolution professional as set out in Form 2. Annex III Proof that the specified application fee has been paid. Annex IV Where the application is made jointly, the particulars specified in this form shall be furnished in respect of all the joint applicants along with a copy of authorisation to the financial creditor to file and act on this application on behalf of all the applicants. Annex V Proofs of serving a copy of the application (a) to the corporate debtor, and (b) to the Board. 11. Rule 9 further provides that the Applicant, whenever he is required to propose to appoint an insolvency r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in question and in this regard, she has referred to Para 6 of the Reply filed by the Respondent in which the following averments have been made: The amounts which were lent by the Financial Creditor to the Corporate Debtor have been squared off in the larger transaction between the parties. This was done pursuance to what had been agreed. Moreover, a part of the amount has been repaid. If necessary, I shall produce documents in connection with other legal proceedings at the time of hearing to establish the same. In any event, it is reiterated that there is no debt or default and therefore, the petition should be dismissed. 7. She has also referred to para 11 of the reply which is also reproduced as under: With reference to the contents of part IV of the said petition, it is stated that the loan cannot be recovered in view of the provisions of the Bengal Money Lenders Act. The CD does not have any licence to lend money under the Bengal Money Lenders Act. Therefore, the purported loan is not recoverable. It is denied that there was any intercorporate deposit or that it was agreed that the loan would carry interest at the rate of 16.5% per annum. The cheque was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is submitted that the Respondent had filed an inter pleader suit for the payment of the dues if any of defendant No. 1 to 38 in the suit (Appellant as Defendant No. 25) by Defendant No. 39. It is submitted that in the said suit injunction was issued on 15.09.2019 that the defendants were not to claim any amount from the plaintiff no. 2/Respondent herein) in connection with the said transaction of business without due process of law. It is argued that there was no loan taken by the Respondent which may fall within the definition of financial debt, which is otherwise a sinequonon for maintaining an application under Section 7 of the Code which could be filed only by a financial creditor on the occurrence of a default by the Corporate Debtor i.e when the amount is due and become payable. 10. We have heard Counsel for the parties and perused the record with their able assistance. 11. The application has been filed under Section 7 of the Code. Section 7(1) of the Code provides that a financial creditor may apply for initiation of CIRP against the Corporate Debtor when a default has occurred and Section 7(2) of the Code provides that the financial creditor shall make an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
