TMI Blog2019 (10) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... nt) And S. K. Mohapatra (Technical Member) For the Petitioner : Ashish Dholakia , Rohan Chawla with Anurag Gupta ORDER M. M. KUMAR C. J. (RETD.) (PRESIDENT). - 1. The petitioner claiming to be financial creditor has filed the instant petition under section 7 of the Insolvency and Bankruptcy Code, 2016 (for brevity the Code ) read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity the Rules ) with a prayer to trigger corporate insolvency resolution process in respect of the respondent-M/s. B. K. Educational Services P. Ltd. (for brevity the corporate debtor ). 2. The corporate debtor-M/s. B. K. Educational Services P. Ltd., was incorporated on April 1, 2005 under the provisions of the Companies Act, 1956. The identification number of the corporate debtor given is CIN U80301DL2005PTC134622. 3. It is submitted by the petitioner that it had disbursed a total amount of ₹ 20,46,500 to the respondent-company in its capacity as the director of the said company in pursuance of the resolution passed by the company in the meeting of board of directors dated September 1, 2015. The said resolution r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of account maintained with the financial creditors, photocopies of the bank statements of both the financial creditor and the corporate debtor, photocopies of the payments made to GNIDA and the statement of account maintained with the corporate debtor. 8. A reply to the petition has been filed by one Mr. Mukesh Aggarwal, being the director of the respondent-corporate debtor, who has been given authority vide board resolution dated August 6, 2018 and also a rejoinder to the reply has been filed by the petitioner-financial creditor. 9. In the reply the respondent-corporate debtor has raised a preliminary objection to the maintainability of the petition and has questioned the material facts based on which the petition is filed. On that basis it is sought to be argued that the amount claimed to be in default is not a financial debt within the meaning of section 5(8) of the Code. 10. The petitioners have out rightly denied the assertion of the corporate debtor and have placed reliance on the judgment of the hon'ble Appellate Tribunal in the case of Shailesh Sangani v. Joel Cardoso [2019] 7 Comp Cas-OL 207 (NCLAT) ; [2019] SCC Online NCLAT 52 where it held as under (pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus, it can be said without any amount of contradiction that in such cases the amount taken by the company is in the nature of a 'financial debt'. A perusal of the aforesaid paragraph from the judgment of the Appellate Tribunal shows that a promoter/shareholder/director of the company can also be its creditor. It is therefore evident that the petitioner as a director has a status different than that of the creditor. In the present proceedings the petitioner has invoked his status as one of the creditor of the respondent-company. 11. Therefore the amount claimed by the petitioner is a financial debt within the meaning of the Code. The petitioner has also placed on record the bank statements that show that the transactions have been made by him in favour of the Greater Noida Industrial Development Authority (GNIDA) on behalf of the company as per the resolution passed by the board of directors in its meeting dated September 1, 2015. The copies of the balance-sheets filed for the years ending 2015, 2016 and 2017 depict borrowings from the directors, shareholders and related parties under the heading short-term borrowings to the tune of more than ₹ 9 crores. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor as may be specified is not to be terminated or suspended or interrupted during the moratorium period. These would include supply of water, electricity and similar other supplies of goods or services as provided by regulation 32 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. 19. We direct the financial creditor to deposit a sum of ₹ 2 lakhs with the interim resolution professional to meet out the expenses to perform the functions assigned to him in accordance with regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Person) Regulations, 2016. The needful shall be done within three days from the date of receipt of this order by the financial creditor. The amount however be subject to adjustment by the committee of creditors as accounted for by interim resolution professional and shall be paid back to the financial creditor. 20. Directions are also issued to the ex-management to provide all documents in their possession and furnish every information in their knowledge within a period of one week from the admission of the petition to the IRP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... control of the company in his hands. As a matter of fact shares were purchased by Mr. Mukesh Aggarwal and Mrs. Sunita Aggarwal from Ms. Pradeep Kaur and Mr. Gurinder Singh. The transfer deeds have been placed on record. It however remains undisputed that during May 19, 2005 to June 27, 2016 e-form were filed by the petitioner himself as every e-form contained his e-mail id or the company's e-mail id. There are many other allegations made in the application. 25. It is true that the Regional Director in its report dated March 18, 2019 has held that the petitioner is guilty of certain acts of indiscretion by recording the preliminary findings on the basis of inspection of books of account and other records. It has been concluded that there are certain violations in respect of sections 220 and 159 of the Companies Act, 1956 and section 253/152(3) of the Companies Act, 1956/2013 and further. 26. The issue before this Tribunal is whether the petitioner has advanced loan to the respondent-company (in his capacity as a creditor) which has remained unpaid. If the loan advanced has not been paid then default has occurred. Therefore, any violation of the provisions of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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