TMI Blog2019 (8) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... omputation 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 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 transaction of loan and it cannot be said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 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. 3. The corporate debtor was served with the notice of this application. They appeared through one of their directors Mr. Radhashyam Agarwal and filed affidavit-in-reply. They flatly denied that they have taken any loan from the financial creditor. It is their contention that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 independent transaction of money lending. They gave loan to the corporate debtor which is defaulted. According to them, the corporate debtor raised false defence. 7. The corporate debtor filed supplementary affidavit dated November 28, 2018 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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 the financial creditor. It appears that corporate debtor had issued the cheques in favour of the financial creditor. Those cheques were for total amount of ₹ 1,00,00,000 (rupees one crore on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 to any person or company unless condition laid down under section 186 of the Companies Act, 2013 complied with sub-section (2) of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 transaction of loan and it cannot be said to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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