2022 (11) TMI 159 - AT - Insolvency & Bankruptcy
CIRP - scope of Financial Creditor - decree holder come within the definition of Financial Creditor or not - HELD THAT:- The Adjudicating Authority has not considered the amount advanced by the Appellant to the Respondent as financial debt particularly because in its opinion the advanced amounts do not involve a time value of money.
The two loans agreements in question make it clear that the loans are interest bearing and the interest rate is also clearly specified in the respective loan agreements. The time period of the loans are also specified in the loan agreements and security towards timely repayment of loan has also been specified in clause 3 of both the loan agreements. Further clause 5 of both the loan agreements make it clear that the borrower shall execute post-dated cheques for repayment in favour of lenders. All these features of the two loan agreements very clearly show that the amounts advanced by the Appellant to Respondent are in the nature of financial debt which carry time value of money - It appears that the interest rates mentioned in loan agreements have not been noticed by the Adjudicating Authority and the interest rate of 24% p.a., which is included in the decree by Hon’ble Delhi High Court, has been taken as the first instance when interest was levied on the amount of debt.
The jural relationship between the parties is also clearly established in the loan agreements and thus the amounts advanced by the Appellant are covered in the definition of ‘financial debt’ under sub-section (8) of section 5 of the IBC.
The decision in Dena Bank [2021 (8) TMI 315 - SUPREME COURT] makes it clear that the judgment or decree of money in favour of the financial creditor passed by DRT or any other tribunal or court would give rise to a fresh cause of action for the financial creditor, to initiate proceedings under section of the IBC. In the present case, the judgment-decree dated 11.1.2018 of the Hon’ble High Court of Delhi in favour of Appellant thus provides a fresh cause of action to the Appellant to move application under section7 of IBC. The loan agreements also establish the jural relationship between the Appellant and Respondent.
The Adjudicating Authority has erred grossly by not considering that the two loan agreements and the features therein are in fact relating to financial debts which are due and payable to the Appellant by the Respondent. As a result, we set aside the Impugned Order and direct admission of the section 7 application. The matter is sent to the Adjudicating Authority for passing necessary orders under the IBC consequent to the admission of section 7 application.