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TMI Blog2018 (9) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... porate Insolvency Resolution Process has been prayed for, was incorporated on 07.03.2011 having its registered office at F-l/2 Ground Floor, Okhla Industrial Area, Phase I, New Delhi-110020. Since the registered office of the respondent corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 3. It is appropriate to mention that the applicant is an individual person residing at House No. E-28, Bali Nagar, New Delhi-110015. 4. The applicant has proposed the name of Mr. Pramod Kumar Sharma, with registration number IBBI/IPA-002/IP-N00110/2017-18/10258, having office at House No.-16, Dasharath Kunj-B West Arjun Nagar, Agra, Uttar Pradesh-282 001 and email id pksharmafcs@gmail. com. A communication dated 28.03.2018 in Form 2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record. Mr. Pramod Kumar Sharma, has agreed to accept appointment as the IRP if an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies has gone down on account of faults of the applicant and his son. It is further alleged that no money is liable to be paid to the Applicant after adjustment of value of shares allotted as detailed at para 11 of the reply and the benefits enjoyed by the applicant family in the form of drawing high salary, perks, use of luxury vehicles etc. It is accordingly submitted that the respondent company has not committed any default as contemplated under Section 7 of the Code. 10. That apart the main objection raised by the respondent is that the applicant is not a 'financial creditor', nor the debts claimed in the application come within the purview of "financial debt" as defined under the Code. It is emphasised that the applicant has not produced any agreement/document on record in support of the pleadings and has wrongly claimed interest @18% per annum. Respondent company alleged that there is nothing on record to show that the company ever agreed to pay any such interest component. It is argued that the applicant is not a 'financial creditor' and the debt claimed in the application does not come within the purview of "financial debt" and therefore the present application is not maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed; (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 effect of a borrowing. Explanation-For the purpose of this sub-clause- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016); (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 guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. It has thus been made clear that in the absence of evidence that the amount was disbursed for time value of money, applicant does not come within the meaning of 'financial creditor'. 21. It is well settled that the onus lies on the applicant to establish that the loan was given against the consideration for time value of money. Onus to prove also lies on the applicant to establish that the debt claimed in the application comes within the purview of 'financial debt' and that the applicant is a 'financial creditor' in respect of the present claim in question. When the respondent debtor disputes that there is no question of payment of interest at any point of time on the debt in question; it becomes more onerous on the part of the applicant to prove that the amount was disbursed against the consideration for time value of money. Admittedly, no document in respect of the loan and to support the pleading that interest is payable on the loan has been furnished by the applicant. Applicant has miserably failed to substantiate with supporting documentary evidence that interest, as claimed at Part-IV of the application, is payable as per the agreed loan covenants. 22. Applicant has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongwith interest, if any, which has been disbursed and (ii) such disbursement has been made against the 'consideration for the time value of money'." 25. It is reiterated that in the present case neither any loan agreement has been placed on record nor there is any supporting evidence/document to establish applicable rate of interest to be paid on the said loan. The applicant has failed to prove that the loan was disbursed against consideration for time value of money, particularly when respondent company has affirmed that no interest has been paid nor payable at any point of time. 26. Similarly, in the matter of Shreyans Realtors (P.) Ltd. v. Saroj Realtors & Developers (P.) Ltd. [Company Appeal (AT) (Insolvency) No. 311 of 2018, dated 04.07.2018] Hon'ble NCLAT has observed that when corporate debtor never accepted the component of interest and has given no undertaking to repay the loan with interest; the Appellants cannot claim to owe 'financial debt' from the 'Corporate Debtor' and thereby cannot be claimed to be a 'Financial Creditor' as defined under Section 5(7) & (8) of the Insolvency and Bankruptcy Code, 2016. 27. In the present case also, there is no document to show th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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