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2019 (8) TMI 684

..... whether the money was borrowed against consideration for time value of money and according to the petitioner the money was given on payment of the interest? - HELD THAT:- The petitioner has filed copies of the order passed by the Judicial Magistrate in the criminal complaints under section 138 of the Negotiable Instruments Act (annexures A to H) to suggest that the proceedings against the respondent-corporate debtor were consigned in terms of section 299 of the Code of Criminal Procedure, 1973, the directors of the respondent-corporate debtor having been declared proclaimed offenders. In one of the case, however, the accused have put in appearance and the matter is pending. The important question was whether the interest was debited in the account of the respondent-corporate debtor maintained in the books of account of the petitioner before May 25, 2018 and details thereof. It is admitted that there is no entry debiting the interest in the account of the respondent being maintained by the petitioner before entry dated May 20, 2017 to the tune of ₹ 2,07,82,027. The loan is said to have disbursed in the year 2013 and it is admitted that there is no entry of debiting the interes .....

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..... the corporate debtor issued eight post-dated cheques of different dates in between November 30, 2015 to April 15, 2016 for the amount of ₹ 50,00,000 each. Last cheque dated April 15, 2016 was for an amount of ₹ 90,00,000. All the cheques were drawn on the Oriental Bank of Commerce Ambedkar Chowk, Ludhiana. The petitioner deposited the cheques in its account and the same were dishonoured with the remarks "insufficient funds". When the petitioner contacted the respondent-corporate debtor it was assured that the amount would be cleared. The petitioner thus filed the criminal complaints under section 138 of the Negotiable Instruments Act but the respondent-corporate debtor and its directors have failed to appear in the court of the magistrate despite issuance of summoning orders and were declared proclaimed offenders. 5. It is stated that the petitioner also filed a petition for winding up of the company in the hon'ble High Court of Punjab and Haryana bearing C. P. No. 122 of 2015 under sections 433, 434 and 439 of the Companies Act, 1956 in support of part of the amount of ₹ 90,00,000 under sections 433, 434 and 439 of the Companies Act, 1956. The matte .....

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..... A1 (colly). 9. We have heard learned counsel for the petitioner at the preliminary stage and have perused the records. 10. In order to be eligible as a financial creditor, the petitioner has to show that it is covered within the definition of the term "financial creditor" as defined in sub-section (7) of section 5 of the Code as meaning any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. 11. "Financial debt" is defined in section 5(8) of the Code as meaning a debt along with 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 ; . . ." 12. The contention of the petitioner counsel is to cover the case of the petitioner in sub-clause (a) of section 5(8) of the Code. So the basic requirement is whether the money was borrowed against consideration for time value of money and according to the petitioner the money was given on payment of the interest. Is there any remote evidence to support this contention ? We are quite aware of the legal proposition that at the preliminary stag .....

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..... te that the petitioner had earlier filed a petition under section 7 of the Code itself against the same corporate debtor being C. P. (IB) No. 122/Chd/Pb/2018 in respect of the same transaction of lending ₹ 4.40 crores to the respondent in the year 2013 and that petition was rejected in limine by this Tribunal by order dated May 23, 2018. It was very strange for the petitioner to file another petition on the same cause of action without disclosing the factum of the earlier petition having been rejected. 17. Learned counsel for the petitioner vehemently contended that the cause of action has now arisen afresh on the basis of a new agreement reached between the parties which is at annexure A1(a) dated June 15, 2018. Under this agreement it is stated that the respondent had borrowed a sum of ₹ 4.40 crores from the petitioner and he issued post-dated cheques. It was disclosed that criminal complaints against the corporate debtor and its directors under section 138 of the Negotiable Instrument Act were filed. Thereafter, it was agreed between the parties that the respondent will pay ₹ 4.40 crores as principal amount and ₹ 1.60 crores as its interest for which the .....

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