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TMI Blog2019 (12) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Mr. Aman Khan, Advocates and Mr. Harshal Madan (CS) for IRP. JUDGMENT That the Appellant / Respondent has preferred this appeal against the order of Admission under Section 7 of the 'Insolvency and Bankruptcy Code 2016 passed by the National Company Law Tribunal, New Delhi (Principal Bench). The present proceeding has been initiated on account of the default committed by the 'Corporate Debtor' in repayment of its dues under the loan Agreement dated 1st April 2016 bearing Contract No. 105996. As per the Appellant/Respondent, the repayment under the Loan Agreement was to commence from September 2016. The Appellant / Respondent has realized the instalments for September 2016 till February 2017. However, the instalments for March 2017 to J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor' contends that on the date of filing of the petition, there was no default as contemplated in Section 7 of the Insolvency and Bankruptcy Code 2016. The 'Corporate Debtor' /Respondent further contends that the petition is pre-mature, and filed after the suppression of facts. The alleged amount is not due and payable at the time of filing of the petition. 5. The Adjudicating Authority admitted the petition on the ground that the 'Corporate Debtor' in the previous round of litigation had candidly admitted the restructuring of total loan amount of Rs. 35,66,61,986/- by way of executing two contracts, firstly by Agreement No. 105996 dated 1st April 2016 for facility of Rs. 18,86,00,000/- and secondly being Agreement No. 111305 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applicant / Respondent has failed to establish the existence of the financial debt as there is no evidence on record evidencing disbursement of the amount of Rs. 18,86,00,000/- on 1st April, 2016. 8. The Appellant further contended that there is no debt payable in law or fact, and the impugned order has been passed by the Adjudicating Authority based on presumed debt. It is further contended that the Adjudicating Authority has committed a serious error in law by placing reliance on the frivolous claims of the Applicant / Respondent which does not even find mention in Form 1. 9. That the Appellant further contended that the Adjudicating Authority in the impugned order had placed reliance on the Supplementary Affidavit filed by the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid back the entire amount to the Applicant /Respondent in two tranches, firstly on 13th April, 2016 a sum of Rs. 17 Crores and secondly on 16th April, 2016 a sum of Rs. 1.86 crores. It is also asserted that the said amount has not been paid towards any previous outstanding. 13. It is important to point out that the Appellant has filed a copy of the order sheet of (IB)-271(PB)/2017 dated 29th November, 2018 with the appeal which is given below for ready reference: - "During the course of arguments Mr. Malhotra, Ld. Counsel for the corporate debtor has pointed out that the amount disbursed in pursuance of loan agreement or on any other count dated 01-04-2016 (18,86,00,000/-) has been paid back on 13-04-2016 and 16-04-2016 itself, and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant has also annexed the copy of the certificate of Bank statements of YES Bank evidencing RTGS transfer of Rs. 17 crores on 13th April, 2016 and Rs. 1,86,00,000/- on 16th April, 2016 in the Account of M/s Wianxx Impex Ltd., the Financial Creditor. 17. It appears that in compliance with the order of the Adjudicating Authority dated 29th November 2018 the 'Corporate Debtor' filed an Affidavit along with Bank certificate. But in reply no evidence was submitted to prove that the outstanding amount is due and payable. 18. It is also important to mention that on perusal of the order sheet dated 11th July 2018 it's evident that the Adjudicating Authority has rejected the Supplementary Affidavit dated 6th June 2018 which was filed by the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement dated 1st April 2016 the amount Rs. 18,86,00,000/- was disbursed bank certificate filed by 'Corporate Debtor' shows that while amount has been returned back. But the finding of the Adjudicating Authority that a sum of Rs. 18,86,00,000/- was again disbursed to the 'Corporate Debtor' is not supported by any evidence. The 'Corporate Debtor' has filed the document to prove that he has repaid the said amount through RTGS transfer to the account of the 'Financial Creditor'. 21. During the argument, it is admitted by the parties that previous petition filed by the 'Financial Creditor' was withdrawn. The document (s) filed in the earlier petition, which was dismissed as withdrawn, could not have been relied on by the Adjudicating Authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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