TMI Blog2017 (2) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... of The Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the Code ) read with Rule 4 of The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as the Rules ) requesting this Authority to commence Corporate Insolvency Resolution Process in respect of M/S. Raninga Ispat Private Limited styling it as corporate debtor. 2. The petition is signed by one Anil Chunilal Varma as authorised signatory of Kotak Resources on the basis of power of attorney dated 07.11.2017 executed by the proprietor of Kotak Resources in favour of Anil Chunilal Varma authorising him to file Insolvency Proceedings against Raninga Ispat Private Limited under the provisions of Insolvency and Bankruptcy Code. 3. It is the case of the petitioner that an amount of ₹ 1.00 crore have been, lent to the respondent through Navis Multitrade Private Limited. The terms of finance made by Navis Multitrade Private Limited and petitioner to the respondent are mentioned in agreement dated 05.09.2012. As per the terms of the agreement Navis Multitrade Private Limited and petitioner are entitled to commission of ₹ 0.50 per kg. of pig iron manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including ₹ 33.00 Iacs from Navis Multitrade Private Limited. Clause 2 refers to the amount claimed to be in default as ₹ 8.54 crores. Respondent denied the allegation that Navis Multitrade Private Limited paid ₹ 33.00 lacs to it. Respondent also stated that it did not receive any goods from Navis Multitrade Private Limited for the alleged amount of ₹ 33.00 lats. According to the respondent, it received ₹ 67.00 lacs from Navis Multitrade Private Limited on the dates mentioned in clause I of part IV of Form I. It is also the plea of the respondent that it has settled entire dues of Navis Multitrade Private Limited and filed ledger account of Navis Multitrade Private Limited maintained by respondent for the period between 01.04.2011 to 31.03.2014. It is stated that the ledger account disclose that respondent received ₹ 67.00 lacs from Navis Multitrade Private Limited whereas respondent paid ₹ 71.27 lacs and, therefore, respondent is entitled to recover ₹ 4.27 lacs from Navis Multitrade Private Limited. It is pleaded by respondent that Navis Multitrade Private Limited wrote a letter to respondent dated 03.07.2015 stating that henceforth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to present and accept all petitions, documents filed before NCLT, Ahmedabad relating to the proceedings initiated against Raninga Ispat Private Limited including filing of this petition. Therefore, objection of the respondent that this petition signed and filed by Mr. Anil Chunilal Varma is not authorised to file this petition is not a valid objection. 7.1 The objection that proprietary concern is not a person as defined in Section 3 (23) of IB Code is not sustainable since proprietary concern is an Individual and Individual is included in Section 3 (23) Of code. 8. Most important objection raised by the respondent is that the amount claimed is not financial debt within the meaning of Section 5 (8) of the Code. Financial debt is defined in Section 5 (8) which says that financial debt means a debt along with interest, if any, which is disbursed against the consideration for the time value of money. It did not stop there. It includes sub-clause (a) to (i) of clause 8 of Section 5. Sub-clause (a) of clause 8 of Section 5 includes money borrowed against payment of interest is financial debt, Section 5 (8) clause (f) is any amount raised under any other transaction, including a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not till 2017 to state all facts. In fact, petitioner issued notice dated 16.09.2017 and it was served on the respondent. In the said notice, there is a reference to the earlier notices issued to the respondent and no reply is given by the respondent to the said notice. Therefore, basing on the part ledger produced by the respondent, it cannot be said that, no amount is due and payable by the respondent to the petitioner. 11. Next contention is that since money is not lent by the petitioner, petitioner is not a financial creditor. As already said agreement refers the petitioner and Navis Multitrade Private Limited as lenders. Debt is financial debt. Therefore, petitioner is financial creditor. Apart from this there is Assignment Deed dated 25.10.2017 executed by Navis Multitrade Private Limited in favour of the petitioner. It is challenged by respondent on the ground that respondent is not a party to the said Assignment Deed. There is no provision in any law that debtor must be a party for the Assignment Deed. Therefore, on the ground respondent debtor is not a party to the Assignment Deed, it cannot be overlooked. 12. Another contention of the learned counsel for responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to commence Corporate Insolvency Resolution Process. Relevant para 30 of the judgement at page 439 are as follows: - On the other hand, as we have seen, in the case of a Corporate Debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the informati0Q utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise . 18. In the case on hand it is held that petitioner is financial creditor. It is also held that the amount due to the petitioner from the respondent is financial debt. There is also occurrence of default in repayment of financial debt. The petition filed by the petitioner is complete in all respects. Hence this application is admitted. 19. In the case on hand petitioner has proposed the name of Mr. Dharmendra Dhelar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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