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2022 (2) TMI 68 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - recovery of an amount deposited towards the promoter’s contribution - existence of debt and dispute or not - HELD THAT:- The Appellant has filed incomplete Application without information provided under Clause 3, 5 and 6 of Part I and Clause 5, 6 and 7 of Part V. Further information under Clause 1 of Part IV is wrong as no amount of debt has been granted. Even otherwise as per statement at page No. 59 & 60 of the Appeal, the total amount deposited is stated to be ₹ 3.85 Crores and not ₹ 1.95 Crore which is mentioned at page 43 of the Appeal. No information about workings for computation of amount and days of default in tabular form in Clause 2 of Part IV. No document specified under rule 3(1)(d) of IBC (Application to Adjudicating Authority) Rules, 2016 and Regulation 2A and 8(2) of IBBI Regulations 2016 to prove the existence of financial debt, the amount and date of default. It is also an admitted fact that no evidence/records have been placed to satisfy the three essential ingredients namely a) Disbursal of loan amount. b) Such disbursal was for a consideration for time value of money. c) A default has arisen either in repayment of whole or in part. No mandatory information/ documents/ evidence required under Clause 3 to 8 of Part-V of Form-1 have been placed. No documents/evidence were placed to prove that the Respondent Company borrowed the alleged unsecured loan from the Appellant. It is also an admitted fact that there are no documents/records to prove that the Appellant is a Financial Creditor. The Appellant stated that the Audited Balance Sheets and other documents mentioned in para 8 of Part-V of the Application prove beyond doubt that two ingredients of IBC Application i.e. Debt and Default are fully stratified. Meaning thereby, there was no Financial Debt defined under Section 5(8) of IBC - the audited Balance Sheets also do not prove the existence of financial debt and default defined under Section 3(12) of IBC. These Balance Sheets do not prove that the whole loan or its instalment when became due and payable and the same is/are not repaid. There is no ‘debt’ and ‘default’ proved by the Appellant in the instant Appeal. Thus, there is no illegality committed by the Ld. Adjudicating Authority while passing the impugned order - appeal dismissed.
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