TMI Blog2020 (6) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... he conditions of repayment. On the other hand, it is assumed to be an oral loan agreement. It is an admitted fact that the Resolution Plan does not crystalize the amount that is due and payable to the Financial Creditor - the Resolution Plan has a saving Clause for the Financial Creditor i.e. Clause 4 which states that the Disputed Creditors, i.e. the Financial Creditor herein, shall be paid on the basis of the outcome of the adjudication of the legal proceedings. The claim of the Financial Creditor was rejected by the Resolution Professional at the first instance in its entirety and based on the list of admitted claim given by the Resolution professional, the Resolution Applicant has submitted the Resolution Plan to the Committee of Creditor and the same was also approved by this Tribunal, thereby the amount which is payable to be Financial Creditor has not been crystallized. The Financial Creditor ought to have approached the appropriate forum for the adjudication of the claim. However, the Financial Creditor is now trying to adjudicate the amount that is due and payable by the Corporate Debtor to the Financial Creditor by filing this Application and by agitating this issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.06.2014 till 08.03.2015. It was submitted that, the interest portion of ₹ 10,00,000/- was deducted upfront and a sum of ₹ 40,00,000/- was disbursed to the Corporate Debtor on 08.05.2014. Further, it was submitted that the Corporate Debtor has issued a Promissory Note dated 08.05.2014 and a Confirmation of Payment letter dated 08.05.2014 and also the Corporate Debtor has drawn cheques in favour of the Financial Creditor reflecting the loan amount. 5. The Learned Counsel for the Financial Creditor submitted that the Corporate Debtor has made part payments, in which certain payments were adjusted towards delayed interest and certain payments were adjusted towards the principal amount. Further, due to the failure of the Corporate Debtor to make any further payments, the Financial Creditor issued a winding up notice under Section 433 and 434 of the Companies Act, 1956 on 31.10.2015 and subsequently filed the Company petition before the Hon'ble Madras High Court, which is numbered as Company Petition No. 76 of 2015. 6. It was further submitted by the Learned Counsel for the Financial Creditor that pursuant to the proceeding, the Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the present Management of the Corporate Debtor has no records with regard to the claim made by the Financial Creditor and that during the time of CIRP, the Resolution professional himself was unable to verify the claims made by the Financial Creditor. 11. It was further submitted by the Learned Counsel for the Corporate Debtor that the Financial Creditor has filed the CA/125/IB/2018 since the claim of the Financial Creditor was not decided by the Resolution Professional and this Tribunal by its order dated 05.07.2018 had directed the Financial Creditor to approach the Resolution Professional for necessary action. In the meantime, this Tribunal vide its order dated 17.09.2018 passed in MA/264/IB/2018 had approved the Resolution Plan in relation to the Corporate Debtor. Subsequently, the Financial Creditor submitted the claim before the Resolution Professional on 10.10.2019. It was contended by the Learned Counsel for the Corporate Debtor that the Financial Creditor could have moved to NCLT at least during the time of approval of the Resolution Plan but chose to stay silent and the fact that the claim was submitted to the Resolution Professional on 10.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent claim is not a disputed debt and the Financial Creditor has given the evidence of the financial transactions between the respective parties and the admission / existence of the debt between the parties. 15. Heard the Counsels for both the parties and perused the records including the documents placed on file. The instant petition has been filed under Section 7 of the IBC, 2016 r/w Rule 4 of the IBBI (Application to Adjudicating Authority) Rules, 2016. The Rule 4 of the said rule is extracted hereunder; 4.Application by financial creditor.- (l) A financial creditor, either by itself or jointly, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under section 7 of the Code in Form 1, accompanied with documents and records reauired therein and as specified in the Insolvency and Bankruotcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations. 2016. 16. In this context, it is relevant to refer to attendant Regulation 8 of the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 8. Claims by financial creditors.(1) A person claiming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be an oral loan agreement. 18. In the matter of Prayag Polytech Private Limited-Vs- Sivalik Enterprises Private Limited in IB-312/(ND)/2019, the NCLT, New Delhi Bench has detailed certain essential conditions which are required to be satisfied by the Financial Creditor seeking to invoke the provisions of Section 7 of the IBC, 2016 and for initiation of the CIRP as against the Corporate Debtor, which are to the following effect; i) There must be a disbursal of the loan amount; the ii) Such disbursal should be made against consideration for time value of money; and iii) A default should have arisen either in payment of interest or in the payment of the principal amount or both on the part of the Corporate Debtor. 19. All the above conditions at the very least, are required to be given by the Financial Creditor and the Financial Creditor is required to satisfy this Tribunal with the averments and documents backing such pleadings. As already stated, documents which are required to be submitted to substantiate a loan must be in the nature of the 'Financial Contract'. 20. Also in the matter of Prayag Polytech Private Limited - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an admitted fact that the Resolution Plan does not crystalize the amount that is due and payable to the Financial Creditor. Also the claim of the Financial Creditor, in the present application is squarely covered by the Judgment of the Hon'ble Supreme Court in para 67, which states that a successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertain amounts payable by a prospective resolution applicant who successfully take over the business of the corporate debtor. However, the Resolution Plan has a saving Clause for the Financial Creditor i.e. Clause 4 which states that the Disputed Creditors, i.e. the Financial Creditor herein, shall be paid on the basis of the outcome of the adjudication of the legal proceedings. The claim of the Financial Creditor was rejected by the Resolution Professional at the first instance in its entirety and based on the list of admitted claim given by the Resolution professional, the Resolution Applicant has submitted the Resolution Plan to the Committee of Creditor and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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