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2020 (8) TMI 546 - AT - Insolvency and BankruptcyMaintainability of application - Corporate Debtor failed to make repayment of its dues - Financial debt or not - Appellant has assailed the impugned order passed by the Adjudicating Authority on the basis that the alleged debt does not fall under the definition of ‘financial debt’ as defined under Section 5(8)(f) of the Code - HELD THAT:- The Petitioner, as Director has a status different than that of the Creditor. In the instant case, the Petitioner has invoked the provision of the Code as one of the Creditors of the Respondent Company, and the amount claimed by the Petitioner is a ‘financial debt’ within the meaning of the Code. The Petitioner contends that the bank statements reveal that the transactions have been made by him in favour of GNIDA on behalf of the Company, given the Resolution Plan passed by the Board of Directors in its meeting dated 01st September 2015. The copies of the balance sheets filed for the years ending 2015, 2016 and 2017 depict the borrowings from Directors, Shareholders and related parties under the heading ‘Short Term Borrowings’ to the tune of ₹ 9 crore. The record is sufficient to show that the amount as claimed by the Applicant is ‘due and payable’, which was disbursed by the Petitioner to GNIDA on behalf of the Respondent Company and based on the above the Adjudicating Authority has admitted the petition. Reliance was placed in the three Member’s Bench of this Tribunal in the case of DR. B.V.S. LAKSHMI VERSUS GEOMETRIX LASER SOLUTIONS PRIVATE LIMITED [2018 (2) TMI 447 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] has held that has noticed that the Appellant has failed to establish that there has been disbursement against consideration of time value and money. The amount, as reflected in the balance sheet of the Company merely describes certain ‘unsecured loans’ being payable to the Appellant whereas the Auditor certificate states that no amount is due and payable to the Appellants. In the circumstances, this Tribunal has rejected the contention of the Appellant and held that Appellant has failed to show that the amount has been raised by the Respondent under any other transaction, such as sale or purchase agreement, having the commercial effect of borrowing - the above case law does not apply to the facts of the present case. In the instant case, the Respondent No.1 has advanced various sums to the Corporate Debtor B.K. Educational Society to ease its liquidity crunch, thereby improving its economic prospects and to save the allotments by making direct payment to the GNIDA for the plot allotted in the name of Corporate Debtor - the amount deposited by the respondent No.1 in the account of GNIDA to save the corporate debtor on account of financial crunch to save the allotment made in the name of corporate debtor falls within the ambit of ‘financial debt’. Admittedly, the amount has not been paid back, and there is a default. The adjudicating authority had admitted the petition filed under Section 7 of the Insolvency & Bankruptcy Code, 2016. There are no justification for interfering with the impugned order - appeal dismissed.
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