TMI Blog2019 (11) TMI 1699X X X X Extracts X X X X X X X X Extracts X X X X ..... T) (INSOLVENCY) NO. 962 OF 2019 - - - Dated:- 26-11-2019 - A.I.S. CHEEMA, J. (MEMBER (J)), KANTHI NARAHARI, MEMBER (T) AND V.P. SINGH, MEMBER (T) For the Appellant : Abhijeet Sinha, Saurabh Kalia, Palash Agarwal, Kanesh Vadula and Saikat Sarka, Advocates For the Respondent : Bhuvan Gugnani and Mythili Srinivasamurthy, Advocates ORDER 1. This appeal is preferred by Uniexcel Developers Private Limited- Corporate Debtor against whom Uniexcel Limited- Financial Creditor filed application under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC in short) before the Adjudicating Authority (National Company Law Tribunal) New Delhi-II in IB-403/ND/2019. The application has been dismissed on 25.07.2019 with liberty given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tomatically change colour or convert particular transaction into loan. The Adjudicating Authority framed issues regarding (1) limitation, (2) whether the claim can be categorized as financial debt and (3) whether there was a default on behalf of Corporate Debtor in payment of the amount claimed. Question of limitation was held in favour of the Financial Creditor. Regarding second issue whether the share money could be categorized as Financial debt, the Adjudicating Authority considered Companies Act as well as Companies (Acceptance of Deposits) Rules, 2014 and concluded in paragraph-10 of the impugned order as under: .... 10. It is clear from a reading of Section 42 of the Act and the Deposit Rules that if the shares are not allott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.07.2015 signed by the Applicant's representative, there is nothing to show that the said letter was actually delivered to the Respondent. Even if it was delivered by hand as claimed by the Applicant, there should have been an acknowledgement of receipt by the Applicant on the copy of the letter. In the absence of anything to show that the delivery was actually made and that the Applicant has fulfilled all its formalities, it cannot be said that it is the Respondent's fault that the refund of the money has not been made. Allowing this application in such circumstances would amount to allowing the Applicant to take the benefit of its own wrong. Since the Respondent is willing to refund the money even now provided the procedure as pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure prescribed by RBI is followed. Now, before us learned Counsel for both the parties are trying to make submissions against each other. While the learned Counsel for the Financial Creditor states that they made demand and the learned Counsel for Corporate Debtor is submitting that the demand is improper and Rules applicable under FEMA and RBI Act are required to be followed. 9. We do not want to go into these necessities whether the application making claim is properly made or whether the Appellant has justification for not refunding the money. Once the Adjudicating Authority came to the conclusion that default has not been proved, the only option it had was to reject the application and the conditional offer could not have been gone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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