9911796707
TMI Blog2020 (8) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No.2) (hereinafter referred to as 'Financial Creditors') under Section 7 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) came to be admitted as against Respondent No.3- 'Cybermate Infotek Limited'- ('Corporate Debtor') in terms of the impugned order dated 26th March, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Hyderabad Bench, Hyderabad with consequential orders of appointment of 'Interim Resolution Professional' and slapping of 'Moratorium' on the assets of the 'Corporate Debtor'. 2. Through the medium of instant appeal, Sh. P. Chandra Sekhar, Director of the 'Corporate Debtor' has assailed the impugned order on various grounds said out in the memo of the appeal to which we shall adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d' (Borrower) and the Appellant- Mr. P.C. Shekhar, the director of 'Cybermate Infotek Limited' as Guarantor. The 'Corporate Debtor' also issued letter dated 1st February, 2017 admitting its liability and undertaking to repay the dues through issue of cheques described in the letter. Since there was a default in clearing the liability, the 'Financial Creditors' triggered 'Corporate Insolvency Resolution Process' by filing an application under Section 7 of the 'I&B Code' before the Adjudicating Authority culminating in passing of the impugned order. 5. It is contended on behalf of the Appellant that the 'Corporate Debtor' is not a signatory to the Loan Agreement dated 31st August, 2013 which has been executed inter se WSPL as lender and Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s significant since this Balance Sheet has been drawn up after the execution of the Settlement Agreement dated 7th September, 2016. Validity of the Loan Agreement and the Settlement Agreement has been under challenge before Civil Court at Hyderabad and this fact has been suppressed by the 'Financial Creditors' before the Adjudicating Authority. It is further submitted that even if it is assumed that the payment made to the 'Cybermate Infotek Ltd. Inc.' was in fact a loan, such loan taken by a subsidiary cannot be foisted on its parent company, the two being distinct legal entities. It is submitted that the Loan Agreement and the Settlement Agreement have not been executed on behalf of the Company and Respondent No.3 is not even a party to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge the liability of the 'Corporate Debtor'. 12. It is submitted that in terms of the letter dated 1st February, 2017 issued by the 'Corporate Debtor' liability for an amount of Rs. 3,87,00,000/- towards the 'Financial Creditors' was admitted whereas liability in regard to the remaining amount was admitted towards WSPL. It is further submitted that the cheques issued towards repayment of dues were dishonoured upon presentation which manifested in filing of the complaints under Section 138 of the Negotiable Instruments Act, 1881 which are pending for determination before the Competent Court. 13. It is submitted that the 'Financial Creditors' have restricted their claim to Rs. 3,87,00,000/- i.e., the liability admitted by the 'Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor' towards the 'Financial Creditors' and assuring repayment of the admitted amount by issuance of cheques. This admission knocks the bottom of the plea taken in regard to there being no privity of contract between the 'Financial Creditors' and the 'Corporate Debtor', and the promoters/ directors foisting their personal liability on the 'Corporate Debtor'. This fact is writ large on the face of the aforesaid letter, genuineness whereof has neither been seriously disputed nor challenged before any competent forum. Even issuance of cheques in pursuance of the aforesaid acknowledgment of liability to the extent of Rs. 3,87,00,000/- towards the 'Financial Creditors', (the remaining admitted towards WSPL), which were later dishonour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Loan Agreement with further stipulation that the loan has been raised for working capital requirements of the 'Corporate Debtor'. It is, therefore, futile to contend that the 'Corporate Debtor' is not a signatory to the Loan Agreement and there is no privity of contract between the 'Corporate Debtor' and the 'Financial Creditors'. The Settlement Agreement dated 7th September, 2016 and the letter dated 1st February, 2017 admitting the debt on behalf of the 'Corporate Debtor' confirm these conclusions. It is, therefore, of no avail for the Appellant to contend on behalf of the 'Corporate Debtor' that the debt, liability in respect whereof has been admitted and acknowledged and default has been committed by dishonour of cheques, was not paya ..... X X X X Extracts X X X X X X X X Extracts X X X X
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