TMI Blog2020 (5) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... India) P. Ltd. - the demand notice was issued by the appellants to the corporate debtor on December 7, 2017 under the I B Code to which the corporate debtor replied on December 14, 2017. The matter was again moved before the Adjudicating Authority which by impugned order dated April 12, 2018 passed in C. P. No. 77/IB/CB/2018 allowed to withdraw the application with liberty to the appellants to file afresh application. It is only thereafter application under section 7 was filed in Form 1 on April 25, 2018. The claim of the appellants is not barred by limitation as at appropriate stage, the appellants moved application under section 433(e) of the Companies Act, 2013 for winding up of the company. In view of the amendments made, the I and B Code was given effect and section 433 having been deleted from the Companies Act, 2013, the appellants had no other option but to move an application under the provisions of the I and B Code . Financial creditors or not - HELD THAT:- Admittedly, the amount as shown by the Assistant Commissioner of Income-tax amounting to ₹ 90,00,000 shows that the amount is disbursed by the second appellant-Smt. Shoba Jayaram for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea that the appellants are the financial creditors and debt is not barred by limitation. 3. Reliance has been placed on correlation statement made by the respondent-( corporate debtor ), which are as follows : Correlation statement I. Statement of payments made by Radha Exports (proprietary concern) to the appellants-(Sl. Nos. 1 to 5 of annexure R/4 at page 11 of the additional counter statement dated June 13, 2019 : Sl. No. Date Issuer Bank Ch. No./D D No. Name Amount (Rs.) Entry in bank account Correlation page No. in additional reply statement dated 14-8-2019 1. 1-10-2003 Canara Bank A/c. No. 1801 on behalf of first appellants customs under invoice case 586096 Chennai Customs-DD 53,05,000 YS PO on Chennai 11 2. 12-12-2003 American Express Bank A/c. No. 510260271 696401 K. P. Jayaram 1,660,000 Normal Inward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means a liability of obligation in respect of a 'claim' and for the meaning of 'claim', we have to go back to section 3(6) which defines 'claim' to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under section 5(21) means a claim in respect of provision of goods or services. When it comes to a financial creditor triggering the process, section 7 becomes relevant. Under the Explanation to section 7(1), a default is in respect of a financial debt owed to any financial creditor of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that be so, it is always open to the corporate debtor to suggest that the amount is not payable in law. 8. From the records, it appears that the matter relating to the Income-tax pending with the office of the Assistant Commissioner of the Income-tax, Chennai, whereby letter dated June 26, 2012, the Assistant Commissioner of Income-tax referred to the balance-sheet of M/s. Radha Exports (India) P. Ltd. showing therein the name of Smt. Shobha Jayaram (the second appellant) and stated that on verification it found that a sum of ₹ 90,00,000 for loan advanced by Smt. Shobha Jayaram to the proprietary concern M/s. Radha Exports transferred as share application money after the incorporation of M/s. Radha Exports (India) P. Ltd. . 9. After the remand report by the Assistant Commissioner of Income-tax dated June 26, 2012 on October 10, 2012 the Radha Exports (India) P. Ltd. written to the Commissioner of Income-tax seeking for rectification of mistake apparent from record. 10. The appellants-Mr. K. P. Jayaram and Mrs. Shoba Jayaram issued legal notice on November 19, 2012 for proceedings against the corporate debtor under sections 433 and 434 of the Companies Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
