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2018 (5) TMI 1916

..... led to show that it is covered within the definition of the term “financial creditor” eligible to maintain a petition under Section 7 of the Code. We say for the reason that the amount disbursed to the corporate debtor does not in any way show that the same was against the consideration for time value of money and not falling within any of the clauses (a to (i) of sub-section 8 of Section 5 of the Code. There is no document relied upon by the petitioner with this petition about the terms of original disbursement of amount made to the respondent-corporate debtor so as to bring the case within the four corners of the definition of the term ‘financial debt’ as given in sub-section (8) of Section 5 of the Code - Perusal .....

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..... inancial creditor lent ₹4.40 crores to the corporate debtor in June, 2013. The petitioner-financial creditor received the cheques against repayment of the said loan, which were dishonoured from time to time and therefore, the petitioner has initiated criminal proceedings under Section 138 of the Negotiable Instruments Act. The petitioner has also filed a Winding up petition i.e. CP No.122/2015 against the corporate debtor under the Companies Act, 1956 before the Hon ble High Court of Punjab and Haryana under Sections 433, 434 and 439 of the said Act. The amount has not been paid despite the service of the statutory notice. The corporate debtor has chosen not to put in appearance before the Hon ble High Court. 3. However, during the pe .....

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..... was against the consideration for time value of money and not falling within any of the clauses (a to (i) of sub-section 8 of Section 5 of the Code. 8. The term financial creditor as per sub-section 7 of Section 5 of the Code 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. 9. Sub-section 8 of Section 5 of the Code defines the term financial debt , which reads as under: "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-m .....

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..... fer to the tune of ₹30,00,000/-. The last entry relating to the disbursement of ₹3,50,00,000/- by RTGS transfer is dated 28.06.2013. The petitioner has not stated anywhere that the amount of ₹4.40 crore was disbursed by the time value of money. The same amount is further carried forward in the ledger account for the financial year 2014-15 as at page 70 of the paper book; for the year 2015-16 at page 71; for the year 2016-17 at page 72 and for the year 2017-18 as at page 73 of the paper book. At page 73 of the paper book, there is entry of addition of ₹1,60,00,000/- being the amount as per the compromise agreement dated 20.05.2017. This ledger statement also shows that the some of the payment made by cheques, but entr .....

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