TMI Blog2018 (9) TMI 1298X X X X Extracts X X X X X X X X Extracts X X X X ..... - Company Petition No. IB-361(PB)/2018 - - - Dated:- 21-8-2018 - MR M.M. KUMAR, PRESIDENT AND S.K. MOHAPATRA, MEMBER (T) For The Financial Creditor : Pankaj Jain, Adv For The Respondent : Ashim Vaccher, Vaibhav Dabas and Pawash Piyush, Advs. ORDER S. K. Mohapatra, Member Mr. Ravinder Pal Singh Lamba, claiming as the financial creditor, has filed the instant application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer to trigger Corporate Insolvency Resolution Process in respect of respondent company M/s Satkar Air Cargo Services Private Limited, referred to as the corporate debtor. 2. The Respondent Company M/s Satkar Air Cargo Services Private Limited (CIN No. U 63000 DL 2011 PTC 215344) against whom initiation of Corporate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Singh. Applicant has also placed the relevant Ledger Account of the respondent company at Annexure 4 of the application, to show that as on 12-9-2014 even as per the account maintained by the respondent company ₹ 80,00,000/- has been shown as outstanding from the applicant Ravinder Pal Singh Lamba. It is submitted that the corporate debtor has clearly admitted the loan amount. However, despite demand made on 06.01.2018, respondent corporate debtor failed and neglected to repay the debt to the applicant. 8. In Part-IV of the application, applicant has claimed that total amount in default is ₹ 1,77,71,974/- as on 31.12.2017, which includes ₹ 80,00,000/- towards Principal Loan and ₹ 97,71,974/- as interest @ 18 % up to 31.12.2017. 9. The Respondent Corporate Debtor has filed its reply on 07.05.2018. The respondent has raised various objections against the admission of the present application. It is contended that business of the group companies 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced below. 5. In this part, unless the context otherwise requires, - ................................................................ (7) Financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. (Emphasis given) (8) financial debt means a debt alongwith interest, 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 de-materialised 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 Accounting 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been claimed as a component of the claimed financial debt . 18. However admittedly applicant has not produced any loan agreement nor there are details and particulars of any applicable interest mutually agreed between the parties. Respondent has alleged that interest has been wrongly claimed being never agreed to. There is nothing on record to show that the respondent company ever agreed to pay any such interest at any point of time. 19. Hon ble NCLAT in the matter of Vishwanath Singh v. Visa drugs and Pharmaceutical (P.) Ltd. held that: In the present case, the respondent has failed to show that the amount of loan treated to have been given to the Corporate Debtor were disbursed against the consideration for the time value of money. In absence of any such evidence on record to suggest that the amount was disbursed against the consideration for the time value of money and was borrowed by the Corporate Debtor against the payment of interest, we hold that the respondent - M/s. Visa Drugs and Pharmaceuticals do not come within the meaning of financial creditor . 20. It has thus been made clear that in the absence of evidence that the amount was disbursed for time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively show that the said loan has reduced to an amount of ₹ 65,00,000/-. It has not been made clear as to how the loan was shown as reduced to ₹ 65,00,000/-. Respondent in its reply has contended that the business of the group companies has gone down on account of faults of the applicant and his son. Respondent has also contended that there has been adjustment of value of shares allotted as detailed at para 11 of the reply and the benefits enjoyed by the applicant s family in the form of drawing high salary, perks etc. Be that as it may it is seen from the various balance sheets of the respondent company that with the passage of time there has been no accumulation of interest in the loan amount. Any loan having been taken without interest or time value of money, cannot be termed to be a financial debt . 24. Hon ble NCLAT in the matter of Dr. B.V.S. Lakshmi v. Geometrix Laser Solutions Private Limited has observed that for coming within the definition of Financial Debt as defined under sub-section (8) of Section 5, the Claimant is required to show that (i) there is a debt alongwith interest, if any, which has been disbursed and (ii) such disbursement has b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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