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TMI Blog2019 (2) TMI 1499X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Companies Act, 1956. The registered office of the respondent corporate debtor is situated at 1072, Kutcha Natwa, Chandni Chowk, New Delhi-110006. Its authorized share capital is Rs. 5,00,00,000/- and the paid up share capital is Rs. 1,868,700/-. Since the registered office of the respondent corporate debtor is in Delhi, this Tribunal being Adjudicating Authority has territorial jurisdiction in respect of respondent corporate debtor as per the provisions of sub-section (1) of Section 60 of the Code. 3. The 'Financial Creditors'-Petitioners have proposed the name of Resolution Professional, Shri Ashish Singh, A-23, Baghbam Apartments, Sector-28, Rohini-110042. He has registration No. IBBI/IPA-002/IP-N00416/2017-18/11230. A written communication sent by him and filed vide diary No. 1857 dated 04.04.2018 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or Indian Institute of Insolvency Professionals of ICSI. In addition, further necessary dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Labour Laws, Sales Tax, Provident Fund, Employees State Insurance, Electricity Department, penalties & fines, Court Orders/Decrees, business transactions of KKK, any other dues of Government or Municipal Corporation or of any other person, shall be borne exclusively by the existing shareholders of KKK, who amongst themselves shall be jointly, severally and unlimitedly liable for the same. (h) SRS shall withheld from the consideration payable to existing shareholders the amount equal to maximum limit of amount, which may be claimed by any person or authority or department against KKK, even in the cases where such claims are disputed by KKK or its shareholders and such disputes have not been finally adjudicated by the competent authorities or a sum of Rs. 1,00,00,000/- (Rupees One Crore only), whichever is more. After settling of all liabilities of KKK or complete development & marketing of proposed I.T. Unit/Park on said land, SRS shall pay such amounts to the concerned existing shareholder, which have been withheld by SRS under this clause and remained unadjusted (i.e., excess over the liabilities of KKK). It is made clear that SRS would pay interest @ 22% per annum to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the erstwhile shareholders of KKK), shall at its own risks, costs and consequences, expeditiously contest, clear & pay all the liabilities along with penalties and interests applicable thereon. For this purpose the Second Party has vide resolution dated 26.04.2008 authorized Sh. K.K. Kohli to initiate /contest all proceedings for contesting the said liabilities on behalf of Second Party and take all such steps, as may be necessary. 6. Soon after the particular liability of Second Party (SRS I-Tech) is cleared/paid/got discharged by the Third Party (Mr. Krishan Kumar Kohli and the erstwhile shareholders of KKK), an amount proportionate thereto shall be refunded by the Fourth Party (SRS Aviations) to the Third Party (Mr. Krishan Kumar Kohli and the erstwhile shareholders of KKK). First, Second and Fourth Parties shall be jointly and severally liable to refund the aforesaid deposits in proportion to the liabilities cleared/paid by the Third Party Appropriate adjustments shall also be given to the Third Party for any refunds/subsidies etc received from Government departments for the period prior to 31.03.2008. 7. S/Shri Nanak Chand Tayal, Anil Jindal and Shri Rajesh Singla (Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as altered to SRS Automotive Components Pvt. Ltd. (SRSACPL). 9. All the aforesaid companies were controlled by the aforesaid three guarantors namely Mr. Nanak Chand Tayal, Mr. Anil Jindal and Mr. Rajesh Singla. 10. On 22.02.2012, SRS I-Tech Pvt. Ltd. paid an amount of Rs. 60,00,000/- towards the income tax liability, which had to be discharged by erstwhile shareholder of KKK and due to this count the deposit amount was reduced to Rs. 1,85,00,000/- 11. On 11.12.2013, SRSRIL, SRSACPL, the aforesaid guarantors and Akriti Global Traders Ltd. transferred the deposit amount to Vision Jewellers Pvt. Ltd. Vision Jewellers Pvt. Ltd. was also controlled by the aforesaid guarantors and was a group company of SRSRIL, SRSACPL. The said deposit remained with the said company till 31.03.2015. 12. Thereafter SRSRIL, SRSACPL, the aforesaid guarantors and Akriti Global Traders Ltd. transferred an amount of Rs. 100 lacs to Mr. K.K. Kohli, Ms. Aanchal Kohli, Ms. Ankita Kohli and M/s. Pawan Kumar Kohli & Sons (HUF) and Rs. 85 lacs to Ms. Radha Kohli, Ms. Saveena Kohli and Mr. Krishan Kumar Kohli (HUF) and directed them to deposit the same with the Trustworthy Gems and Jewellers Pvt. Ltd. (Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful defaults only with the mala fide intention to cheat and defraud the company. In fact, despite our repeated requests and lapse of about 9 years, it appears that you are deliberately avoiding clearing the aforesaid liabilities despite being fully aware that interest and penalty is accruing day by day and further the statutory authorities are exerting pressure upon us to clear the liabilities. In fact, interests and penalties are accruing on said liabilities and the same are increasing day by day. In these circumstances, please note that Trustworthy Gems & Jewellers Private Limited and Logical Jewellers Private Limited are not liable to pay you amount till you clear of liabilities of K.K. Kohli & Brothers Private Limited (now known as SRS Automotive Components Pvt. Ltd.) for period upto 31.03.2008 and submit proof thereof to us. We shall settle accounts with you upon your clearing said liabilities." 16. A chart relating to computation of amount of default and dates of default has been placed on record in a tabular form which is as under:- Details of Calculation of interest for Trustworthy Gems & Jewellers (P) Ltd from 01.01.2016 to 31.01.2018 Loan Amount : 100 Lac Interest : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to reach a correct conclusion, it would be pertinent to note the definition of expression 'financial creditor' as provided by Section 5 (7) of the Code which means any person to whom a financial debt is owed and includes a person to whom such financial debt has been legally assigned or transferred. The expression 'financial debt' has been defined in Section 5(8) of the Code to mean a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes a number of other transactions which are as under:- "(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 basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the present case it is evident from the perusal of reply to the notice sent by the Corporate Debtor to the Financial Creditor that as per agreements and addendums executed between them, a sum of Rs. 1,85,00,000/- (Rupees One Crore Eighty Five Lakh Only) belonging to the petitioners has been deposited with Trustworthy Gems & Jewellers Private Limited and Logical Jewellers Private Limited towards security of liabilities of K.K. Kohli & Brothers Private Limited (now known as SRS Automotive Components Pvt. Ltd.) for period upto 31.03.2008. It is also asserted by the Corporate Debtor that they have been fulfilling their part of obligation by payment of interest on the aforesaid amount through Trustworthy Gems & Jewellers Private Limited and Logical Jewellers Private Limited. However, the petitioner has remained unable to clear its own liabilities within maximum period of 5 years and alleged to have avoided the clearance of the aforesaid liabilities deliberately knowing fully well that interest and penalty is accruing day by day. It was further alleged that the statutory authorities were exerting pressure upon the Corporate Debtor to clear the liabilities. It was in the aforesaid ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Creditor has failed to discharge its own obligations and the amount would not be due and payable till they discharge their own obligation. It is pertinent to mention that the Corporate Debtor has conceded the agreements and addendums but has gone to say that it has been paying interest and the Financial Creditor was to clear its liabilities within a maximum period of five years and are deliberately avoiding to perform their part of obligation despite being fully aware that interest and penalty is accruing day by day. It is in these circumstances that the Corporate Debtor has stated in categorical terms that they are not liable to pay to the Financial Creditor any amount till it clears the liabilities of K.K. Kohli & Brothers Private Limited (now known as SRS Automotive Components Pvt. Ltd.) for the period upto 31.03.2008 and submit proof thereof. Therefore, the amount is to become due and payable on the performance of obligation undertaken by the Financial Creditor but not before that. In the petition a copy of the reply dated 06.12.2017 filed by the Corporate Debtor has been attached but no detailed explanation has been given has to how the Financial Creditor is not liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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