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TMI Blog2021 (2) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his individual property as a security to the loan availed by him from the applicant. It is clearly mentioned that Mr. A. Francis has obtained loan and towards that loan he has offered his property as mortgage to the applicant herein. There is no Privity of Contract between the applicant and the Corporate Debtor. The Applicant failed to satisfy this Adjudicating Authority regarding disbursement of loan into the accounts of the Corporate Debtor. The loan alleged to have been availed by the Corporate Debtor is not reflected in the statement of accounts filed along with the application. The entire transaction was on 20.10.2015. The argument of counsel for Applicant solely relies on the unregistered Memorandum of Understanding (MoU) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad lent loan to the tune of ₹ 50,00,000/- (Rupees Fifty Lakh) on 20.10.2015 to the Corporate Debtor and the Interest payable at the rate of 25.2% per annum on the principal amount. The Corporate Debtor has failed to repay the principal and interest dues. The Applicant claims a sum of ₹ 76,53,969.10 as outstanding debt due. According to the Applicant, the date of default of loan is 19.08.2019. The Applicant further states that as per the unregistered Memorandum of Understanding (in short, MOU ) dated 05.07.2019, the entire amount ought to be repaid by the Corporate Debtor within a period of 45 days from the date of MoU. Since the Corporate Debtor did not repay the loan. The loan amount became due and payable on 19.08.2019. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by not less than one hundred of such creditors in the same class or not less than ten per cent of the total number of such creditors in the same class, whichever is less: Provided further that for financial creditors who are allottees under a real estate project, an application for initiating corporate insolvency resolution process against the corporate debtor shall be filed jointly by not less than one hundred of such allottees under the same real estate project or not less than ten per cent. of the total number of such allottees under the same real estate project, whichever is less: Provided also that where an application for initiating the corporate insolvency resolution process against a corporate debtor has been filed by a financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that if the Adjudicating Authority has not ascertained the existence of default and passed an order under sub-section (5) within such time, it shall record its reasons in writing for the same. (5) Where the Adjudicating Authority is satisfied that - (a) a default has occurred and the application under sub-section (2) is complete, and there is no disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit such application; or (b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary proceeding is pending against the proposed resolution professional, it may, by order, reject such application: Provided that the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 50,00,056/- was paid into the account of Mr. A. Francis on 20.10.2015 through RTGS. Subsequently, another statement of account (SBI) for the period from 02.04.2018 to 31.08.2019 (Page No. 46) reflects that on 17.08.2018, a sum of ₹ 76,250/- was paid by Mr. A. Francis and again on 12.11.2018 another sum of ₹ 75,000/- was paid by Mr. A. Francis to the Applicant. The name of the Corporate Debtor does not reflect in any of the bank transactions. The Applicant ought to file bank statements to prove that loan was paid to the Corporate Debtor. From the documents filed along with the application, it is seen that the amount was paid to the Managing Director in his individual capacity. The Applicant has not filed any bank statement t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailed by the Corporate Debtor is not reflected in the statement of accounts filed along with the application. 7. The entire transaction was on 20.10.2015. The argument of counsel for Applicant solely relies on the unregistered Memorandum of Understanding (MoU) dated 05.07.2019 wherein he states that since the Corporate Debtor has executed the above MoU, the Corporate Debtor owes a total outstanding amount of ₹ 1,00,00,000/- (One Crore) to the Applicant and 4 other creditors. However, proof of payment/disbursement into the account of the Corporate Debtor has not been submitted by the applicant. Further, no interest has been serviced from the accounts of the Corporate Debtor. It is clear that the Applicant has failed to prove debt a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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