TMI Blog2019 (3) TMI 1911X X X X Extracts X X X X X X X X Extracts X X X X ..... showing this amount as a financial debt except saying that there is an oral agreement. Since the Petitioner has failed to prove the basic requirement that the amount advanced is a financial debt as provided under the Code, the other contentions raised by the parties are not gone into detail. Petition dismissed. - CP (IB)- 4023/I&BP/MB/2018 - - - Dated:- 6-3-2019 - HON BLE BHASKARA PANTULA MOHAN, MEMBER (J) AND HON BLE V. NALLASENAPATHY, MEMBER (T) For the Petitioner : Mr. Parveen Kumar Aggarwal, Advocate. For the Respondent : Mr. Shyam Kapadia a/w Mr. Abhijeet Shinde, Ms. Sara Sundaram, Advocates. ORDER Per: V. Nallasenapathy, Member (T) 1. Jagdambey International (hereinafter called Petitioner ) has so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner submits that the Corporate Debtor transferred a sum of ₹ 5,00,000/- to the bank account of the Petitioner on 26.11.2015. After the above payment the Petitioner submits that there a due of ₹ 40,00,000/- from the Corporate Debtor. 5. The Petitioner sent a demand notice on 25.09.2018 through an advocate calling upon the Corporate Debtor to pay a sum of ₹ 40,00,000/- along with interest @ 18 % p.a. within 10 days of the receipt of the notice. The Corporate Debtor by an email dated 09.10.2018 addressed to the advocate of the Petitioner, stated that the claim is bad in law, with malafide intent, they do not carry any material substance and it is a claim utterly wrong in representation. It was further stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor issued bank receipt vouchers showing this payment made by the Petitioner as payment on behalf of the Sai Ysh Solar. There is no agreement or any other document on record to support the alleged loan. The Petitioner failed to show any correspondence demanding the alleged money for the Corporate Debtor for the last 3 years and this reveals the frivolity of the claim. The Petitioner is not a financial creditor within a meaning of section 5(7) of the Code and the debt is not a financial debt as provided as under section 5(8) of the Code. (b) The claim is barred by limitation in view of the fact that the alleged loan was advanced on 20.10.2015 and 23.10.2015 and this petition was filed on 22.10.2018. The alleged loan of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the consideration for time value of money and includesa. a. Money borrowed against payment of interest; b. Any amount raised by acceptance under any acceptance credit facility or its de-materialized equivalent; c. Any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; d. The amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; e. Receivable sold or discounted other than any receivable sold on nonrecourse basis; f. Any amount raised under any other transaction, including, any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence the Petitioner cannot say that the money is given for interest but subsequently also in the amended Form I, the claim for interest was given up by the Petitioner and hence the transaction cannot fit in the definition of Financial Debt as defined under the Code. It is not the case of the Petitioner that they are the shareholders/directors/promoters of the Corporate Debtor and had given interest free loan to the Corporate Debtor, so that they will get some indirect benefit by increase in the earning of the Corporate Debtor or by a saving in interest expense since there is no outgo on account of interest payment and ultimately there is some indirect monetary benefits to the stakeholders so that the amount advanced can be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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