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TMI Blog2020 (12) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... company of HBN Home Colonizers Private Limited under section 60(5) (C) of the Insolvency and Bankruptcy Code, 2016 for seeking directions against the Interim Resolution Professional ("IRP") of HBN Home Colonizers Private Limited ("Respondent") inter alia for following prayers: i. To Direct LD IRP of HBN Home Colonizers Private Limited to admit the claim of the applicant, include the name of applicant in the CoC and to give voting shares. 2. One Mr. Bhanu Ram & Ors. filed insolvency application under section 7 against HBN Diaries And Allied Ltd. ('Parent Company') for brevity and Hon'ble Principal Bench on 14.08.2018 allowed the application initiating CIRP of HBN diaries and allied ltd and appointed Mr. Rohit Sehgal as IRP (p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that after the submission of above claim, the Respondent wrote an email to the Applicant on 09.08.2019 for seeking certain clarifications and further documents regarding the claim submitted by the Applicant. The respondent has sought clarification with respect to the interest part and calculation of the same. Thereafter, the Applicant replied to the said email of the Respondent specifically stating that all the required documents to show the existence of claim are annexed along with Form C duly submitted. The applicant submitted that the documents as sought by the Respondent are not in the possession of present Applicant as the ex-management and suspended promoters/Directors are not cooperating with the present Applicant while con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial debt. I am unable to classify you as Financial Creditor." 5. It is submitted by the applicant that the promoters of HBN Dairies and Allied Limited and HBN Home Colonizers Private Limited are same, who were engaged in illegally mobilizing of funds through HBN Dairies and Allied Limited to the extent of Rs. 1136 Crores which has been collected from lakhs of innocent general public under unauthorized Collective Investment Schemes towards alleged rearing and upbringing of cattle. The Securities and Exchange Board of India ("SEBI") pursuant to a reference having been made by Reserve Bank of India for indulging in illegal fund mobilizing ordered the HBN Dairies and Allied Limited and its Directors on 12.02.2015 to refund the money coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Income Tax Authority has already been de-attached the properties vide its revocation order 09.04.2019. 8. It is submitted that SEBI has challenged the order of de-attachment passed by the Hon'ble Principal Bench which is upheld by the Hon'ble Appellate Tribunal. The order of Hon'ble NCLAT is again impugned vide SLP(Civil) No. 13678 of 2019 before the Hon'ble Supreme Court, which has granted the interim stay from alienating the properties, while directing the applicant to continue with the CIRP of the company. The same SLPs is pending. 9. It is submitted that the Applicant has submitted the financial documents of both the companies undergoing CIRP to prove the existence of the claim amount. The financial documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he absence of required documents, the respondent was unable to verify the claim of the applicant and necessary supporting documents were sought again. A copy of the email dated 20.08.2019 is duly annexed. 13. The Respondent vide email dated 30.10.2019 to the applicant, stated that since HBN Dairies and Allied Limited is the parent company of HBN Home Colonizers Private Limited, it is imperative to understand the transactions reflected in the financial statements to collate and classify the claim. The respondent further informed the applicant that his claim falls under the category of 'other creditors' and that the claim should be filed in the appropriate form i.e. Form-F. 14. The Respondent submits that the applicant has annexed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed companies without any proof of time value of money cannot be classified as a financial debt. The amount of Rs. 61,31,09,115.00/- outstanding payable to HBN Dairies and Allied Ltd. does not have the essential ingredients of financial debt and does not fall under Section 5(8) of the Code, unless proven otherwise by necessary documents. 17. We are supported by the observations of the Hon'ble National Company Law Appellate Tribunal in Shreyans Realtors Pvt. Ltd. & Anr. Vs. Saroj Realtors & Developers Pvt. Ltd. which has held that: "In case of interest free unsecured loan, Corporate Creditor cannot claim to owe 'financial debt' from 'Corporate Debtor' and thereby cannot be claimed to be a 'Financial Creditor' as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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