Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + Tri Insolvency and Bankruptcy - 2022 (9) TMI Tri This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (9) TMI 138 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- On perusal of record, it can be seen that the date of default has not been mentioned in the petition. According to section 3(11) of the Code, a “debt” means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. Further, according to section 3(12), “default” means non-payment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the Corporate Debtor. Therefore, in order to determine the date on which the cause of action arose, and the date from which the limitation would ensue, it is crucial to determine the date of default. In the instant matter, no date of default has been mentioned in the Form 5 of the petition. Further, the brief synopsis provided in the petition mentions that the last payment was made on 04.11.2016. in the absence of the date of default, the date of cause of action cannot be determined. Since the MOU has been used to establish the basis of the financial relation with the Corporate Debtor, the same cannot be used to support the claims of the petitioners who are not parties to the MOU. The Financial Creditors’ contention that the other financial creditors gave the money to the Corporate Debtor on behest of the said MOU, and at the request of Shri Shyam Sundar Poddar and Shri Sital Kumar Poddar, is untenable in absence of any document supporting the same - As an evidence of the same, the Corporate Debtor has provided the payment details which show that amounts equal to the principal sums lent by the Financial Creditors being Impex India Inc., S.K. Engineering, SRMB Ionic International, Bimal Jajodia, Deepti Poddar, Nirmala Poddar, Manju Lohia and Shyam Sundar Poddar (HUF) have been transferred by the Corporate Debtor. The Financial Creditors, in order to establish default of re-payment on part of the Corporate Debtor, have mentioned about various dishonoured cheques. All the cheques have been dated 02.09.2019 and are signed by Rajib Guha and Aloke Kumar Banerjee i.e directors of the Corporate Debtor - The issue of the validity and genuineness of the cheques, which are pivotal to establish default of the Corporate Debtor, can only be done in appropriate proceedings by leading evidence and not in summary proceedings under the Code. This Adjudicating Authority, therefore, is not satisfied that default on part of the Corporate Debtor is established. Further, in absence of an explicit date of default in the petition, the same is incomplete. As such, the instant petition is liable to be rejected.
|