TMI Blog2020 (10) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... , and the debts claimed in the application come within the purview of financial debt as defined under the Code. In the absence of evidence that the amount was disbursed for time value of money, the applicant does not come within the meaning of financial creditor - It is well-settled that the onus lies on the applicant to establish that the loan was given against the consideration for time value of money. Onus to prove also lies on the applicant to establish that the debt claimed in the application comes within the purview of financial debt and that the applicant is a financial creditor in respect of the present claim in question. The applicant has miserably failed to substantiate with supporting documentary evidence that interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated October 1, 2019 executed by M/s. Sameer Sales P. Ltd., and the financial creditor. 3. The respondent-company M/s. Samtex Desinz P. Ltd., against whom initiation of corporate insolvency resolution process has been prayed for, was incorporated on July 7, 2017 having its registered office at Unit No. 125, First Floor Block, 11, Tribhuvan Complex, Ishwar Nagar, New Delhi. Since the registered office of the respondent-corporate debtor is in New Delhi, this Tribunal having territorial jurisdiction over the NCT of Delhi is the Adjudicating Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 ₹ 1,60,00,000 to the corporate debtor to meet the shortfall in certain operating expenses. The said sum was acknowledged to be due and payable in the balance-sheet of the corporate debtor. (ii) On October 1, 2019 the debt of M/s. Sameer Sales P. Ltd., was assigned to the financial creditor since there were several business trans actions between M/s. Sameer Sales P. Ltd., and the financial creditor. (iii) On October 11, 2019 the financial creditor wrote to the corporate debtor informing it as to the subrogation of the financial debt owed by the corporate debtor to M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application under section 7 of the Code, the applicant has to proof that the application is maintainable as the applicant is a financial creditor , and the debts claimed in the application come within the purview of financial debt as defined under the Code. 14. The expressions financial creditor and financial debt have been defined in section 5(7) and (8) of the Code. In view of the definitions therefore a creditor in order to come within the meaning of finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 the meaning of 'financial creditor'. 19. It has thus been made clear that in the absence of evidence that the amount was disbursed for time value of money, the applicant does not come within the meaning of financial creditor . 20. It is well-settled that the onus lies on the applicant to establish that the loan was given against the consideration for time value of money. Onus to prove also lies on the applicant to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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) and (8) of the Insolvency and Bankruptcy Code, 2016 . 24. Therefore, neither the present claim can be termed to be a financial debt nor does the applicant come within the meaning of financial creditor . Once the applicant does not come withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
