TMI Blog2018 (6) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is a financial transaction in which a debt has been disbursed against the consideration for the time value of money and he being the Financial Creditor is entitled To trigger the insolvency process against the respondent in accordance with Section 7 of the I&B Code. The petition filed by the applicant / financial creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Resolution Process and declare a moratorium and public announcement as stated in Section 13 of the I&B Code, 2016. The moratorium is declared for the purposes referred to in Section 14 of the Insolvency and Bankruptcy Code, 2016. - CP(IB) NO. 275/KB/2018 - - - Dated:- 26-4-2018 - MR. JINAN K. R. AND MR. MADAN B. GOSAVI, JJ. For The Appellant : Anuj Singh, Ritoban Sarkar and Avishek Das, Advs. ORDER Per Shri Madan B. Gosavi, Member (Judicial) 1. The petitioner, Supriyo Rana has filed this petition under Section 7 of Insolvency Bankruptcy Code, 2016 (hereinafter to be referred as the I.B. Code) read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiation of Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- Add: Appreciation @25% after one and half Year of scheduled period. ₹ 1,66,288/- Add: Interest after the Due Date: Rs.3,43,350/- made (hereinafter also referred to as the scheduled period). Thereafter, the intention of the parties to withdraw from the scheme and avail the benefits of assured returns @25% appreciation was duly communicated to the Corporate Debtor. The same was duly acknowledged and accepted. However, even after one and half year after the scheduled period, the corporate debtor failed to pay a sum of ₹ 12,09,638 to the applicant. Thereafter, several notices and emails were sent with respect to the same but to no avail. 5. In Nikhil Mehta Sons (HUF) Ors. Vs. M/s AMR Infrastructures Ltd., the Hon'ble NCLAT has held that : The NCLT dismissed the Application on the singular premise that the agreement in question was clearly a pure and simple' agreement of sale and purchase of a piece of property and has not acquired the status of a financial debt as the transaction does not have consideration for the time value of money. The NCLT held, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, if any, which is disbursed against the consideration for the time value of money and includes : (a) Money borrowed against the payment of interest; (b) Any amount raised by acceptance under any acceptance credit facility or its dematerialized equivalent; (c) Any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) The amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accountant Standards or such other accounting standards as may be prescribed; (e) Receivables sold or discounted other than any receivables sold on non recourse basis; (f) Any amount raised under any other transaction including any forward sale or purchase agreement, having the commercial effect of a borrowing; (g) Any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) Any counter-indemnity obligation in respect of a gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to understand the expression 'Financial Creditor', the requirements of expression 'financial debt' have to be satisfied which is defined in Section 5 (8) of the I B Code. The opening words of the definition clause would indicate that a financial debt is a debt along with interest which is disbursed against the consideration for the time value of money and it may include any of the events enumerated in sub-clauses (a) to (i). Therefore, the first essential requirement of financial debt has to be met viz. that the debt is disbursed against the consideration for the time value of money and which may include the events enumerated in various sub-clauses. A Financial Creditor is a person who has right to a financial debt. The key feature of financial transaction as postulated by Section 5(8) is its consideration for time value of money. In other words, the legislature has included such financial transactions in the definition of Financial debt' which are usually for a sum of money received today to be paid for over a period of time in a single or series of payments in future. It may also be a sum of money invested today to be repaid over a period of time in a sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we proceed for passing the following Order: ORDER The petition filed by the applicant / financial creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 is hereby admitted for initiating the Corporate Resolution Process and declare a moratorium and public announcement as stated in Section 13 of the I B Code, 2016. The moratorium is declared for the purposes referred to in Section 14 of the Insolvency and Bankruptcy Code, 2016. The IRP shall cause a public announcement of the initiation of Corporate Insolvency Resolution Process and call for the submission of claims under Section 15. The public announcement referred to in clause (b) of Sub-Section (1) of Insolvency and Bankruptcy Code, 2016 shall be made immediately. Moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 prohibits the following: (a) The institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) Transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any leg ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
