TMI Blog2021 (2) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... time value money. The letter dated 03.04.2016 at annexure D and the various balance sheets relied upon by the Petitioner makes it abundantly clear that there is no interest payable on the loan advanced by the Petitioner. Apart from the above, no time is fixed for repayment in the absence of which it cannot be said that the loan was lent for time value money. Thus, there should be no hesitation in holding that the above amount claimed in the above Petition does not fall under the definition of financial debt and the above Company Petition is liable to be dismissed. Petition dismissed. - CP (IB) - 1420/I&BP/MB/2019 - - - Dated:- 9-2-2021 - Hon ble Shri H. V. Subba Rao, Member (Judicial) And Hon ble Shri Shyam Babu Gautam, Member (Tec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 25,00,000/- 6 14.03.2016 ₹ 45,00,000/- 7 29.03.2016 ₹ 50,00,000/- Total ₹ 2,70,00,000/- 3. The said loan was advanced by the Applicant to the Respondent on the specific understanding that upon the resignation of the Applicant from the board of directors of the Respondent and upon a demand thereafter being made for the same, the Respondent would immediately repay the said loan back to the Applicant without any demur or delay. 4. The said loan has been admitted and acknowledged by the Respondent by the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same amount has been confirmed by the Corporate Debtor by issuing the confirmation of accounts for the period 01.04.2017 to 30.06.2018. 8. The Petitioner has enclosed the copies of audited annual accounts of the Corporate Debtor for the year ended 31.03.2016 to 31.03.2018 under which the said loan has been shown under the caption of unsecured loans from directors which is also describes the admission of debt. 9. The Corporate Debtor filed reply contending as below: a. The liability created is a mere book entry and not by infusion of any funds, provision of goods or services. b. Liability created in favour of Mr. Dinesh Changela, is in violation of FEMA. As per Indian regulation, one cannot make payment of foreign supplier to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter. h. Mr. Dinesh Changela is a U.K. Citizen and is having Tax identification No. in UK and would be filing his return of income in U.K. A request should be made through NCLT to collect Global statement of assets and liabilities wherein Mr. Dinesh Changela should have shown the above transaction of debit and credit of above referred parties, in his declaration in UK. This needs to be done to ensure the FACTA declaration given by Mr. Dinesh Changela is correct and any payment is not on account of siphoning of money or transfer of money in violation of FEMA. i. Absence of disclosure of related party transaction as required by ICAI, questions the transaction entered in the accounts about repayment of creditors. j. In nutshell, lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest the loan will not fall under the definition of Financial debt. In support of the above contention, the Corporate Debtor relied upon the following orders passed by the Hon ble NCLAT which are extracted below: a) sanjay kewalramani vs. sunil parmanad kewalramani, MANU/NL/0150/2018 held as follow: 12. There is nothing on the record to suggest that 2nd and 3rd Respondents had given the loan in favour of the Corporate Debtor which can be termed to be disbursement of an amount for consideration for the time value of money as required under Section 5(8). Merely grant of loan and admission of taking loan will ipso facto not treat the 2nd and 3rd Respondents as Financial Creditors , till they show that it complies with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within specific period. On the basis of such evidence, the Appellants cannot claim to owe financial debt from the Corporate Debtor and thereby cannot be claimed to be a Financial Creditor as defined under Section 5(7) (8) of the Insolvency and Bankruptcy Code, 2016. 12. It is also settled position that the amount to be constituted under financial debt should be disbursed against time value of money as per the law laid by the Hon ble Supreme Court in the matter of Innoventive Industries Ltd. v/s. ICICI Bank and Another, AIR 2017 SC 4084. In the present case the Petitioner has failed to produce on record any document to show that the amount which is actually given to the Corporate Debtor for interest i.e. loan disbursed against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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