TMI Blog2020 (12) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor, in absence of appropriate supporting documents to prove its claim as Financial Creditor. As per the Code, for a claimant to be categorized as Financial Creditor, there has to be a financial debt as per Section 5(8) of the Code, which is a debt disbursed against the consideration for time value of money. The amount of ₹ 61,31,09,115/- 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 - the present application fails and is rejected. - CA No. 546/2019 in CP(IB) No. 82/ND/2018 - - - Dated:- 8-9-2020 - Dr. Deepti Mukesh, Member (J) And Sumita Purkayastha, Member (T) For the Appellant : Prateek Kushwaha For the Respondent : Nandwani, Advs. ORDER Dr. Deepti Mukesh, Member (J) 1. The instant application has been filed by the Resolution Professional of HBN Dairies and Allied Limited ( Applicant ) which is a parent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 conducting of CIRP. That in order to seek cooperation and obtain financial documents from suspended promoters/Directors, the Applicant has filed a non-cooperation application vide CA No. 359/PB/2019 under section 19(2) of Insolvency and Bankruptcy Code, 2016. It is submitted that the applicant had replied to the email dated 13.08.2019 to the respondent to the query regarding the basis of calculation of interest and has stated that we took prime lending rate of SBI as the benchmark for charging interest rate @12% p.a. . 4. It is submitted that the Respondent constituted the committee of Creditor on 22.08.2019 without inducting Applicant as member of CoC. The Applicant sent a letter dated 18/10/2019 to the Respondent requesting to include in the CoC. Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its subsidiary companies. A copy of order dated 28.06.2017 passed by SAT is annexed. 7. Further, the present Applicant had moved an application before Principal Bench praying to de-attach the properties as attached by SEBI and Income Tax Authority and to hand over the title deeds of Immovable Properties. The Hon'ble Tribunal vide its order dated 30.04.2019 directed the SEBI to de-attach the properties and to hand over the possession to the Resolution Professional along with all its record so as to enable the Resolution Professional to conduct the CIRP expeditiously and further observed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant has annexed the financial statements of the company along with the application which shows unsecured loan of ₹ 61,34,09,115/- given to HBN Home Colonizers Private Limited by HBN Dairies and Allied Limited. However there is no provision of interest or payment of interest on the said unsecured loan in the financial statements and upon careful perusal of the balance sheets of the HBN Dairies and Allied Limited, it is evident that there is/was no interest payable to the HBN Dairies and Allied Limited for the unsecured loan amount. 15. The Respondent has neither denied nor rejected the claim of the applicant rather has only advised to file the claim under Form F which is for 'other creditors' as no relevant documents have been brought forth by the applicant to support his claim of being a Financial Creditor. 16. In above circumstances, we are of the considered opinion that the Respondent/RP has not rejected the claim of the Applicant. It has only sought clarificatory documents and in the absence of such documents, advised the applicant to files his claim in Form-F. The HBN Dairies and Allied Ltd. cannot be admitted to be a Financial Creditor, in absence of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
