TMI Blog2021 (5) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ot under the section 10 of IBC, 2016. Hence, it is clearly evident that the application has been filed under section 10(3)(a) of IBC, 2016 whereas the main matter against the applicant has been filed under section 7 of IBC, 2016, meaning that the applicant is not the Corporate Applicant in the main matter. Thus, the present application is not maintainable and no direction prayed in the present application can be granted to the applicant. Application dismissed. - I.A. No. 156/ND/2021 and IB-1772/(ND)/2019 - - - Dated:- 13-4-2021 - P.S.N. Prasad, Member (J) And Dr. V.K. Subburaj, Member (T) For the Appellant : Prashant Mehta, Advocate For the Respondents : Saumay Kapoor and Sanjukta Roy, Advocates ORDER P.S.N. Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r bringing the debt within the fold of financial debt'. The amount disbursed as debt against the consideration for time value of money may or may not be interest bearing. What is material is that the disbursement of debt should be against consideration for the time value of money. Clauses (a) to (1) of Section 5(8) embody the nature of transactions which are included in the definition of financial debt'. It includes money borrowed against the payment of interest. Clause (I) of Section 5(8) specifically deals with amount raised under any other transaction having the commercial effect of a borrowing which also includes a forward sale or purchase agreement. It is manifestly clear that money advanced by a Promoter. Director or a Shareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount disbursed by Respondent No. 1 to the Corporate Debtor was in the nature of debt treated as long term loan and not as an investment in the nature of share capital or equity. Such disbursement cannot either be treated as largesse. We are convinced that the aforesaid amount outstanding as against Corporate Debtor, default whereof is not in issue, has all the trappings of a financial debt' and falls within the purview of Section 5(8)(J) of the MB Code and Respondent No. 1 is covered by the definition of 'Financial Creditor'. iii. The applicant states that in terms of order dated 18.02.2020 it placed its balance sheets on record and further submits that the copies of the said balance sheets are showing that the investment m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent stated that the Tribunal vide order dated 02.03.2020, granted the applicant to file an application seeking discovery of financial statements. Whereas, the applicant failed to file the said application within the stipulated period of time further, the application filed is at a highly belated stage of the proceedings. iv. The Respondent further relied upon the order of the Hon'ble NCLAT in the matter of V. Padmakumar v. Stressed Assets Stabilisation Fund (SASF) Anr. [Company Appeal (AT) (Insolvency) No. 57 of 2020), wherein the Hon'ble Tribunal held that the Balance Sheets/Annual Returns of the Corporate Debtor cannot be treated as an acknowledgement of debt for the purposes of section 18 of the Limitation Act, 1963. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving filing of the application.] (4) The Adjudicating Authority shall, within a period of fourteen days of the receipt of the application, by an order- (a) admit the application, if it is complete 2[and no disciplinary proceeding is pending against the proposed resolution professional]; or (b) reject the application, if it is incomplete 3[or any disciplinary proceeding is pending against the proposed resolution professional]: Provided that Adjudicating Authority shall, before rejecting an application, give a notice to the applicant to rectify the defects in his application within seven days from the date of receipt of such notice from the Adjudicating Authority. (5) The corporate insolvency resolution process shall comme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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