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2022 (1) TMI 161 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Financial Debt or Operational Debt - existence of ‘Default’ or not - HELD THAT:- In the present case, it is brought to the forefront that the ‘Appellant’ had issued the declaration under the proviso to, Rule 2(c) of the Rules. There is no gainsaying of the fact that the ingredients of Sections 73 & 76 are not meant to protect the Company to whom the sum is given - In the present case, it is to be pointed out that at no point of time the Respondent/Company sought to avoid the ‘Loan Transaction’ with the ‘Appellant’. As a matter of fact, the Respondent and its Officers had confirmed their obligations to repay the ‘Loan’ to the ‘Appellant’. As such, the plea of ‘Voidability’ of the ‘Loan Transaction’ is not available to the Respondent/ Company, in the considered opinion of this ‘Tribunal’. In the present case, the Second transfer ₹ 1.60 crores was made to the Respondent/Company on 18.01.2017 and the said transfer was effected from the Appellant’s personal Bank Account to the Current Account of the Respondent/Company. In fact, the first Transfer of ₹ 2.50 Crores, was made on 01.12.2016 to the Respondent/Company and these were recorded in the Minutes of the Board of Director’s on 22.03.2017 and 06.04.2017 respectively. The contra views arrived at by the ‘Adjudicating Authority’ that the ‘Loan’ was not a ‘Financial Debt’, as the amounts were not ‘money borrowed’ by the ‘Corporate Debtor’ and that the borrowing may not constitute a ‘Financial Debt’ that could be enforced as per the I & B Code, 2016 though the ‘Borrowing’ may be reflected in the ‘Balance Sheet’ as pointed out by the ‘Petitioner (Appellant)’ etc; are legally ‘invalid’ and ‘untenable’ - Application allowed.
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