TMI Blog2019 (4) TMI 1864X X X X Extracts X X X X X X X X Extracts X X X X ..... ows that the appellant has disbursed the amount and therefore has right to claim - Having held that the appellant comes within the definition of Corporate Debtor , we are of the view that the application filed by the appellant under Section 7 was required to be admitted by the Adjudicating Authority, but the Adjudicating Authority having failed to consider the matter in proper perspective, we set aside the impugned order dated 21st August, 2018 and remit the case to the Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi to admit the application under Section 7 after notice to the Corporate Debtor , who in the meantime, may settle the claim. Appeal allowed. - Company Appeal (AT) (Insolvency) No. 592 of 2018 - - - Dated:- 23-4-2019 - [Justice S.J. Mukhopadhaya] Chairperson And [ Justice Bansi Lal Bhat ] Member (Judicial) For Appellant : Mr. Pankaj Jain and Ms. Dhriti Sarin, Advocates For Respondent : Mr. Vaibhav Dabas, Advocate JUDGMENT Sudhansu Jyoti Mukhopadhaya, This appeal has been preferred by Ravinder Pal Singh Lamba, who claims to be a Financial Creditor against judgment dated 21st August, 2018 passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Promoter Directors of the said Companies, approached them with a request to allow the Appellant and his son to enter into the business of logistics and freight forwarding so that Mr. Gursimran Singh Lamba i.e. the son of the Appellant can learn and enter into the said business. During the initial meetings, the Appellant as well as his son namely Mr. Gursimran Singh Lamba had assured the Promoter Directors of the abovementioned group of Companies that Mr. Gursimran Singh Lamba was capable of looking after the day today affairs of the business and accordingly a request was made by the Appellant to incorporate a new Company to carry on the business of Air Cargo. Thus, Satkar Air Cargo Services Private Limited was incorporated with Mr. Gursimran Singh Lamba as one of the Promoter Shareholder and a Promoter Director. Also, the Appellant s son Mr. Gursimran Singh Lamba was inducted as Director and/or shareholders in other group of companies as detailed herein above. 6. Further, according to the Respondent, the Respondent herein namely M/s Satkar Air Cargo Services Pvt Ltd was incorporated with Mr. Gursimran Singh Lamba as one of the Promoter Shareholders and a Promoter Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sured that Satkar Terminals Limited would do extremely good business. Upon such assurances, Mr. Gursimran Singh Lamba was given the responsibility to perform the overall functions of Satkar Terminals Limited' including sale and business, development, employees recruitment, statutory compliance, operational activities, cash and bank accounts handling, payments and recovery etc. Further, on requests made by the Appellant as well as Mr. Gursimran Singh Lamba, independent responsibility was given to Mr. Gursimran Singh Lamba to handle Satkar Terminals Limited and the same is also evident from the various communications which were exchanged between Mr. Gursimran Singh Lamba exclusively with various clients of the Company, associates, vendors, employees, land owners etc. 8. From the aforesaid statement of the Corporate Debtor , we find that the plea has been taken that the appellant and his son Mr. Gursimran Singh Lamba were provided with the amount not as a loan but as an investment on the part of the appellant as well as his son namely Mr. Gursimran Singh Lamba for running the business of Satkar Air Cargo Service Pvt. Ltd. This is evident from the statement made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3,71,928.00) (3,71,928.00) Net Amount 1,15,61,539.00 0 1,15,61,539.00 1,16,34,107.00 0 1,16,34,107.00 10. Section 5(7) defines Financial Creditors and Section 5(8) defines Finan cial Debt as follows: (7) financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to; (8) financial debt means a debt alongwith 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; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of debt , we have to go to Section 3(11), which in turn tells us that a debt 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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