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2023 (12) TMI 1076 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LBMaintainability of section 7 application - initiation of CIRP - inter corporate deposit of Rs.7 Crores is captured in an unstamped document with the title of “confirmation and undertaking” @ interest of 1% per month - Financial Creditor/R2 had made an investment of a sum of rupees seven crores in the project developed by the CD/ R1 or it is a loan? Reliance upon unstamped document in deciding CIRP - HELD THAT:- Adjudicating Authority has come to a conclusion that there is a financial debt, there is a default basis other documents and no reliance whatsoever nature has been placed on the confirmation and undertaking dated 29.09.2015. Since Adjudicating Authority has not relied upon that and have come to a conclusion that there is a debt and default and demand notice which is not disputed and accordingly concluded that sufficient reasons exists for Section 7 CIRP proceedings. The plea of the Appellant, to claim that the unstamped agreement/instrument in question cannot be admitted into evidence under the provisions of the Maharashtra Stamp Act, as a defense, cannot render the corporate insolvency resolution process (“CIRP”) non-maintainable, when there exists other material on record to prove existence of default in payment of debt - there are no fault in the orders of the Adjudicating Authority. Financial Creditor made an investment or gave a loan - HELD THAT:- There is a contradiction to the nature of amount payable to the Financial Creditor which is admitted in the audited financial statements placed by the Corporate Debtor, being shown as unsecured loan, and which has also been noted by the Adjudicating Authority. Furthermore, R1 himself has admitted that it has serviced the interest in accordance with the terms of the confirmation and undertaking till June 2017. National E Governance Services Limited (NeSL) Report dated 24.06.2020, also reflects this as a loan wherein the Date of Default is reflected as 23.12.2015 and the total outstanding is of Rs.4,80,80,000/- - Adjudicating authority has rightly come to the conclusion that it is a loan and allowed Section 7 proceedings under IBC. Adjudicating Authority has come to a conclusion that there is a financial debt and there is a default on the basis of other documents, and no reliance whatsoever nature has been placed on the confirmation and undertaking dated 29.09.2015. Since Adjudicating Authority has not relied upon the “confirmation and undertaking” and has come to a conclusion that there is a debt and default and demand notice, which is not disputed and accordingly concluded that sufficient reasons exists for CIRP proceedings under Section 7 of IBC, 2016 - non-stamping of document does not render the corporate insolvency resolution process (CIRP) application filed to be non-maintainable when there exists other material on record to prove existence of default in the payment of debt. There are no error in the order of the Adjudicating Authority admitting Section 7 proceedings of the IBC against the CD/ M/s Shankheshwar Properties Pvt. Ltd. (R-1) - there is no merit in this appeal - appeal dismissed.
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