TMI Blog2019 (8) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the repayment period of the said unsecured loans. The unsecured loan provided by the petitioners in the present case will not fall under the category of financial debt. It is also proved that the debt has not become due and same is not payable at this point of time as the petitioners are also parties to the subordination agreement and the clauses are binding on them. Therefore, the petitioners cannot be treated as the financial creditors. Petition cannot be admitted. - C. P. (IB) No. 30/7/HDB/. - - - Dated:- 22-8-2019 - K. Anantha Padmanabha Swamy (Judicial Member) And Dr. Binod Kumar Sinha (Technical Member) For the Petitioners/Financial Creditors : Anil Kumar and V. V. N. K. Sarath Saran For the Respondent : Vishnu Datt Gupta , Kishore Soni , PCA with Ms. C. Shilpa , Ajay Kumar Agarwal and Sailesh Baheti , PCS For the Canara Bank : Srinivas ORDER K. ANANTHA PADMANABHA SWAMY (JUDICIAL MEMBER). - 1. Under consideration is a company petition filed by Mr. Abhishek Agarwal and 2 others (in short petitioners/financial creditors) against M/s. Manasadevi Bakers P. Ltd., having its registered office at Patwari Sadan, H. No. 16-2- 705/1/7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLAT) and ICICI Bank Ltd. v. Palogix Infrastructure P. Ltd. [2018] 1 Comp Cas-OL 137 (NCLT), wherein it is held that the POA holder is not competent to file an application on behalf of a financial creditor, or operational creditor or corporate applicant. ► [2011] 163 Comp Cas 37 (SC) ; [2011] 11 SCC 524 in the matter of (State Bank of Travancore v. Kingston Computers (I) P. Ltd.) wherein it is held that on mere authorisation a suit cannot be filed. ► C. S. (COMM) No. 513 of 2017-High Court of Delhi-in the matter of (Zest Systems P. Ltd. v. Center for Vocational and Enterpreneurship Studies)-wherein it is held that the acknowledgment of the debt in the balance-sheet extends the period of limitation. ► The National Company Law Appellate Tribunal-Company Appeal (AT) (Insolvency) Nos. 436-437 of 2019-in the matter of Damont Developers P. Ltd. v. Bank of Baroda [2019] 214 Comp Cas 481 (NCLAT)- wherein it is held that the Adjudicating Authority is required to go through the record to find if there is a debt and default and while doing so it was open for the corporate debtor to show that there is no debt payable and no default, at the stage of admission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditors as defined under section 5(7) and 5(8) of the IB Code, 2016. According to the said provisions financial debt means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes money borrowed against the payment of interest. It is also stated that default means nonpayment of debt when whole or any part or instalment of the amount of debt has become due and payable and is not paid by the debtor or the corporate debtor, as the case may be. In view of provisions of section 5(7) and (8) of the IB Code, the petitioners could not be treated as financial creditor and the unsecured loan cannot be treated as financial debt. It is for the petitioners to establish that the loan was given against the consideration for time value of money. The learned practicing chartered accountant has relied on the following judgment of the Principal Bench (order dated January 2, 2019) in the matter of Carnousite Management India P. Ltd. v. CBS International Projects P. Ltd. [2019] 212 Comp Cas 166 (NCLT) wherein it has been categorically and precisely held that financial debt is a debt along with interest if any, which is disbursed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other managing director Mr. Ajay Kumar Agarwal. It is also stated that Mr. Vishnu Dutt Gupta settled unsecured loans to some of the parties which is evident from the difference of unsecured loan mentioned during the financial year 2015-16 and Income-tax return for the year 2016-17. It is also stated that the petitioners are the financial creditors who will fall under the provision of section 3(12) of the I and B Code, 2016. 12. Mr. Vishnu Dutt Gupta has filed an application bearing I. A. No. 432 of 2019 wherein he has prayed this Adjudicating Authority to direct M/s. Canara Bank, Gulbarga Branch to submit a certified copy of the subordination agreement dated August 26, 2014 as the petitioners have contended that they have not signed the subordination agreement. The petitioners filed counter and, inter alia, submitted that they have not singed the sub- ordination agreement and their signatures have been forged as such directing M/s. Canara Bank to produce the subordination agreement is not necessary and it would totally derail the CIRP. Therefore the petitioners prayed to dismiss the application bearing I. A. No. 432 of 2019. 13. Heard all the parties and perused the plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of the I and B Code, 2016, in absence of any agreement with regard to the repayment period of the said unsecured loans. 16. Further, M/s. Canara Bank has submitted the copy of the subordination agreement dated August 26, 2014 in C. A. No. 432 of 2019 and in the said agreement it is evident that the petitioners are also signatories to the agreement and in page 2 of the said agreement all the signatories including the petitioners have undertaken that they will not sue for, collect, assign or receive payment of any present claims or arising hereafter until bank's claims are settled. It is unambiguous and it is binding on the petitioners also. It was the contention of the petitioners that they have not signed the said agreement and their signatures were forged whereas Mr. Ajay Kumar Agarwal, who is one of the family members of the petitioners, confirmed that the company had availed loan from M/s. Canara Bank and he is silent about the signatories of the agreement. When their own family member is silent about the signatories, the contention of the petitioner that the signatures were forged is not sustained. 17. In view of the above observations, we conclude t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
