Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2020 (10) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (10) TMI 1275 - NATIONAL COMPANY LAW TRIBUNAL — NEW DELHI BENCH—COURT NO. VIMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - onus to prove debt - HELD THAT:- There is no dispute that the applicant initially had disbursed the amount interest free to the respondent-company. A perusal of the application is it clear that the loan was given interest free - In order to allow any application under section 7 of the Code, the applicant has to proof that the application is maintainable as the applicant is a "financial creditor", and the debts claimed in the application come within the purview of "financial debt" as defined under the Code. In the absence of evidence that the amount was disbursed for time value of money, the applicant does not come within the meaning of "financial creditor" - It is well-settled that the onus lies on the applicant to establish that the loan was given against the consideration for time value of money. Onus to prove also lies on the applicant to establish that the debt claimed in the application comes within the purview of "financial debt" and that the applicant is a "financial creditor" in respect of the present claim in question. The applicant has miserably failed to substantiate with supporting documentary evidence that interest, as claimed at Part IV of the application, is payable as per the agreed loan covenants. Neither the present claim can be termed to be a "financial debt" nor does the applicant come within the meaning of "financial creditor". Once the applicant does not come within the meaning of "financial creditor", he becomes ineligible to file the application under section 7 of the Insolvency and Bankruptcy Code, 2016 - petition stands dismissed as not maintainable.
|