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2019 (8) TMI 717

..... n 7 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In this case, the financial creditor stated amount of ₹ 1,00,00,000 was given as a loan to the corporate debtor. They did not produce on record loan agreement. They did not state what was the terms and conditions of repayment of loan. They did not state what was the rate of interest agreed. They produce on record working computation of default at annexure II. Their own chart shows that interest was charged at rate of 12 per cent. but it was charged only on amount of ₹ 95,00,000 that is after deducting sum of ₹ 5,00,000 which was received by them from the corporate debtor through RTGS. The financial creditor was not in position to give any loan to anybody as clai .....

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..... Avinash Raj Constructions P. Ltd. (corporate debtor) to start corporate insolvency resolution process of corporate debtor on the allegations that the corporate debtor committed default in paying debt of ₹ 1,66,07,452 (rupees one crore sixty six lakhs seven thousand four hundred and fifty two only). 2. The financial creditor has come out with plain case that on April 17, 2012 they gave loan of ₹ 1,00,00,000 (rupees one crore only) to the corporate debtor. In April, 2014 the amount that was payable by the corporate debtor to them was ₹ 1,66,07,452 (rupees one crore sixty six lakhs seven thousand four hundred fifty two only) together with the interest. In spite of demand, amount was not paid. Hence, this proceeding is filed. .....

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..... re was no transaction of giving loan by financial creditor and taking loan by the corporate debtor as stated by the applicant in petition under section 7 of the Insolvency and Bankruptcy Code. The amount claimed is not a "financial debt". In fact nothing is due and payable by them to the financial creditor. This false proceeding is filed. The same may be dismissed. 6. The financial creditor filed rejoinder dated September 7, 2018. They admitted in the rejoinder that they were to purchase land from M/s. Aasu Projects P. Ltd. But they denied that amount of ₹ 1,00,00,000 (rupees one crore only) was paid to the corporate debtor as a brokerage. According to them, the transaction in between them and the corporate debtor is indepen .....

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..... urther submitted that the amount paid to the corporate debtor towards brokerage cannot be "financial debt". The proceeding under the Insolvency and Bankruptcy Code is not maintainable. She also submitted that even otherwise the claim as raised, barred by limitation. 11. I peruse the record. It is not in dispute that M/s. SKDJ Dream Home P. Ltd., was to purchase plot of land from M/s. Aasu Project P. Ltd. That transaction could not be materialised. The corporate debtor stated that they received amount of ₹ 1,00,00,000 (rupees one crore only) from SKDJ Dream Home P. Ltd., not as a loan but as a brockerage. Later on amount of ₹ 5,00,000 (rupees five lakhs only) was paid through RTGS as they entered into settlement with th .....

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..... only). The cheque were given to the applicant as a security. 15. After filing of the affidavit-in-reply by the corporate debtor, financial creditor by way of rejoinder admitted the fact that they were to purchase land from M/s. Aasu Projects P. Ltd. The transaction could not be materialised, etc. However, they further stated that, that transaction is nothing to do with the corporate debtor. They gave loan of ₹ 1,00,00,000 (rupees one crore only) to the corporate debtor. The corporate debtor issued cheques. The corporate debtor also paid ₹ 5,00,000 (rupees five lakhs only) and refused to pay balance. 16. It is not in dispute that the financial creditor is not banking company or non-banking financial institute. It cannot give loan .....

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..... wned subsidiary company, the requirement of this sub-section shall not apply : Provided further that the company shall disclose the details of such loans or guarantee or security or acquisition in the financial statement as provided under sub-section (4)." 17. In view of above provision of law, it has to be held that financial creditor was not in position to give any loan to anybody as claimed by them. Unless conditions stated in sub-sections (2) and (3) of section 186 of the Companies Act, 2013 are fulfilled. There is nothing on record to show that the financial creditor gave loan after complying above conditions. Hence, the transaction as potrayed by the financial creditor against the corporate debtor cannot be recognized as the tran .....

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