9911796707
TMI Blog2020 (10) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... brevity "the Code") read with rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity "the Rules") with a prayer to trigger corporate insolvency resolution process in respect of respondent-company-M/s. Samtex Desinz P. Ltd., referred to as the corporate debtor on account of the default in payment of debt by the corporate debtor to the extent of Rs. 1,56,89,740 which had been extended to the corporate debtor. 2. It is pertinent to mention, here that the financial creditor is the assignee of the original lender to the corporate debtor, and has stepped into the shoes of the original lender consequent to the assignment of the debt to it by the original lender vide debt assignment agreement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept the appointment as the interim resolution professional and has signed a communication in form 2 in terms of rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or elsewhere. Accordingly, he satisfies the requirement of section 7(3) (b) of the Code. 7. As per Part IV of the application it is claimed that a sum of Rs. 1,56,89,470 along with nil interest is due from the respondent-company. 8. The pleaded ease of the applicant is as : (i) M/s. Sameer Sales P. Ltd., advanced a sum of Rs. 1,60,00,000 to the corporate debtor to meet the shortfall in certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentative and currently authorised signatory of the corporate debtor has appeared along with counsel and submitted that due to bad financial conditions they are unable to pay the amount. 10. On the ground that huge amounts are outstanding, it is claimed that the respondent has become commercially insolvent and accordingly it is prayed for initiation of corporate insolvency resolution process against the respondent-company by admitting the present application. 11. Heard the parties and perused the case records. 12. There is no dispute that the applicant initially had disbursed the amount interest free to the respondent-company. A perusal of the application is it clear that the loan was given interest free. 13. In order to allow any appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt clearly show that no interest was charged on the loan amount. 18. The hon'ble National Company Law Appellate Tribunal in the matter of Vishwa Nath Singh v. Visa Drugs and Pharmaceuticals P. Ltd. [2018] 3 Comp Cas-OL 744, 750 (NCLAT) held that : "In the present case, the respondent has failed to show that the amount of loan treated to have been given to the corporate debtor were disbursed against the consideration for the time value of money. In absence of any such evidence on record to suggest that the amount was disbursed against the consideration for the time value of money and was borrowed by the corporate debtor against the payment of interest, we hold that the respondent M/s. Visa Drugs and Pharmaceuticals do not come within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document to establish applicable rate of interest to be paid on the said loan. The applicant has failed to prove that the loan was disbursed against consideration for time value of money, particularly when the respondent-company has affirmed that no interest has been paid nor payable at any point of time. 23. Similarly, in the matter of Shreyans Realtors P. Ltd. v. Saroj Realtors and Developers P. Ltd. (Company Appeal (AT) (Insolvency) No. 311 of 2018, vide its order dated July 4, 2018) [2019] 5 Comp Cas-OL 501 (NCLAT) the hon'ble National Company Law Appellate Tribunal has observed that "when the corporate debtor never accepted the component of interest and has given no undertaking to repay the loan with interest ; the appellants cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
