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TMI Blog2023 (4) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... t was admitted, the petition filed by the Financial Creditor, is to be admitted, subject to the condition that the Petition/Application is complete in all respects. As far as the present case is concerned because of the default committed by the Corporate Debtor relating to the repayment of the loan amount due to be paid by Respondent/Financial Creditor, the loan amount, was declared as Non Performing Asset. There is no simmering doubt that the main CP/IB)/06/KOB/2022 was filed by the Respondent/Petitioner as Financial Creditor as per definition Section 5 (7) of the I B Code, 2016. It cannot be gainsaid that, even if a portion of the debt due and payable is tacitly admitted by a Corporate Debtor/company and it comes within the threshold sum of the default of Rs.1 crore, as per (Section 4 (1) of I B code, 2016 vide chapter 1 preliminary part 2) then, the Adjudicating Authority/Tribunal, is endowed with a subjective discretion, to admit the Section 7 Application filed by a party under the I B Code, 2016 once the Debt and Default are proved, to its satisfaction - A moonshine or an illusory defence, cannot be put forward by a party, and the same can be brushed assigned by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /Petition by initiating CIRP against the Corporate Debtor / Company, declared Moratorium and appointed an Interim Resolution Professional etc., Appellant s Submissions: 3. The Learned Senior Counsel for the Appellant, submits that the Adjudicating Authority / Tribunal , on an erroneous appreciation of the Facts and Law had proceeded to admit the Section 7 Application filed by the Respondent/Petitioner/ Financial Creditor after dismissing the IA/IBC/285/KOB/2022 (Filed by the M/s Mango Meadows Agricultural Pleasure Land (P) Limited, Kottayam, Kerala, under Section 65 of the I B Code, 2016) 4. The Learned Counsel for the Appellant, takes a stand that the Adjudicating Authority / Tribunal came to an incorrect conclusion that the entries in Books of Accounts / Balance Sheets of Corporate Debtor constitute an acknowledgement of Debt , when the voluminous documents, produced by both parties reflect fraudulent action by the Respondent/ Financial Creditor / Petitioner in initiating the Application under Section 7 of the I B Code, 2016, according to the Appellant, the total sum of debt granted was Rs.10/- crores and Rs.8/- crores only was through Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact, neither the payments are effected by the company nor the dates of actual payments tally with the statement produced by the Respondent/ Financial Creditor . 10. The Learned Counsel for the Appellant, bring to the notice of this Tribunal that the Appellant/Applicant filed an IA No. 285/2022 in Main CP(IB)/06/2022 (under Section 65 of the I B Code, 2016) seeking for a declaration that the main Company Petition (IB)/06/KOB/2022 was initiated by the Respondent/ Financial Creditor fraudulently and with a malicious intent, for purposes, other than for Resolution of the Insolvency, and of Corporate Debtor and for levying Penalty on Respondent / Financial Creditor and to dismiss the main Company Petition preferred by the Respondent / Financial Creditor . 11. The Learned Counsel for the Appellant, points out that as per the statement produced by the Respondent / Financial Creditor , only a sum of Rs.11,08,333 was recorded to have been repaid by the Appellant, when for the Financial Year ending 31.03.2016, the Appellant had repaid a sum of Rs.4,17,67,965/-. That apart, numerous repayments effected by the Appellant, for the later period was not reflected in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.18,48,84,627/- and interest from 01.12.2021, a sum of Rs.5,09,49,391/-. In all the amount claimed to be in default was Rs.23,58,34,018/- and the same is outstanding. The date of default was on 18.07.2019, when the last remittance of Rs.9,99,976.40/- paise was received by Respondent/Petitioner. 17. It is averred in the Form 1 under part IV of the Application (filed under Section 7 of the I B Code 2016, R/w Rule 4 of Insolvency and Bankruptcy application to Adjudicating Authority ) rules 2016 , by the Respondent/ Financial Creditor /Petitioner that the Corporate Debtor / Company had acknowledged its financial debt on 2.12.2020 in the balance sheet 31.3.2020, amounting to Rs.37,09,70,242.23 as long term liability, which is including the term loan availed from the Financial Creditor . 18. According to the Respondent/Petitioner/ Financial Creditor the Corporate Debtor had made only some part payments which were too meagre compared to the committed repayment obligations and under the last payment received from the Corporate Debtor , amounting to Rs.9,99,976.40/- paise, was received by the Financial Creditor on 18.7.2019 and added further, no further repayments were re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. 23. It is aptly pointed out by this Tribunal, that the circumstance under which the Corporate Debtor , is not able to repay the Financial Debt , need not be taken as a Defence , in a proceeding under the Code. The reason for incapacity/inability of a Corporate Debtor , to pay its Debt , is not required to be gone into/looked into by an Adjudicating Authority / Tribunal , in the considered opinion of this Tribunal . An Acknowledgement : 24. An Acknowledgement , is to reflect an Acknowledgment of an existing liability , as per decision Rangasami V Thangavelu 42 Mad 637. An Acknowledgment of the Debt must involve an admission of a subsisting relationship of Debtor and Creditor , and an intention to continue it until it is lawfully determined must also be evident. 25. Be it noted, that when a Debtor , makes an acknowledgment of its liability to pay a Debt, it will ordinarily mean that he was admitting a subsisting liability to pay as per decision in Tulshi Ram V Nek Ram reported in AIR 1945 All 224. Also, that the plea of an Acknowledgment need not include the exact nature of a Liability, as per decision of the Hon ble Supreme Court of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt claimed is more than the threshold limit as per the section 4 of the I B Code 2016, the petition can be admitted. 32. On going through the Impugned Order dt.25.1.2023 in CP/(IB)/06/KOB/2022, on the file of the Adjudicating Authority / Tribunal it is evident that Corporate Debtor side took some time to pay the admitted default but not paid any sum. Also that, the debt sum, payable by the Corporate Debtor as on 11.11.2022, was more than Rs.2 crores and the fact of the matter, is that the I and B code 2016 can be pressed in to service from the time the default is more than Rs.1 crore. If an Adjudicating Authority /Tribunal is subjectively satisfied that a Default took place and in fact when the Debt was admitted, the petition filed by the Financial Creditor , is to be admitted, subject to the condition that the Petition/Application is complete in all respects. 33. As far as the present case is concerned because of the default committed by the Corporate Debtor relating to the repayment of the loan amount due to be paid by Respondent/Financial Creditor, the loan amount, was declared as Non Performing Asset . There is no simmering doubt that the main CP/IB)/06/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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