TMI Blog2022 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... be brushed aside in view of the fact that the claim of the Applicant, in the absence of any legally binding agreement between the parties, is not falling under any of the category stipulated under Section 5(8)(a) to (i) of IBC, 2016 in order to qualify as a 'financial creditor'. It is seen that the Applicant has preferred the present Application before this Tribunal only on 25.08.2021 and has also failed to explain such enormous delay of 12 months in filing the present application. Even though liberty was granted for the Applicant to file a fresh Application, the Applicant has been keeping silent and sleeping over a period of one year and only at the fag end of CIRP when the Resolution Plan in respect of the Corporate Debtor is in the offing and after the same was approved by the CoC, the Applicant has preferred the present Application, which in any case, is devoid of any merits. The order passed by the RP rejecting the claim of the Applicant is free from all legal infirmities and does not warrant interference of this Adjudicating Authority - application dismissed. - IA(IBC)/1108(CHE)/2021 in IBA/622/2019 - - - Dated:- 6-12-2021 - S. Ramathilagam J. (Member (J)) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor to the tune of ₹ 26,92,510/- towards purchase of cotton yarn from the above seller and based on the said understanding, on 03.05.2017, the Applicant had paid a sum of ₹ 12,14,591/- on behalf of the Corporate Debtor to the account of M/s. Sudarsanam Spinning Mills and similarly a sum of ₹ 14,77,919/- on behalf of the Corporate Debtor to the account of M/s. Sri Vishnu Shankar Mills on 11.01.2017 by way of RTGS. It was submitted that the above payment was made by the Applicant to the sellers for the benefit of the Corporate Debtor against the consideration for time value of money. It was further submitted that the Corporate Debtor has agreed to pay interest at the rate of 12% p.a. towards such money remitted and as such the Corporate Debtor has paid an interest amount of ₹ 2,79,291/- on 05.04.2018 to the Applicant. 5. The Learned Counsel for the Applicant submitted that when the Applicant sought for settlement of the said loan amount with interest, the Corporate Debtor had issued 2 cheques for ₹ 26,92,510/- and ₹ 2,90,792/- dated 26.09.2019 drawn on ICICI Bank, Chidhambaram Branch and when the same was presented for collection, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file afresh, the Applicant has moved the present Application after expiry of almost 15 months and when the Resolution Plan in respect of the Corporate Debtor is already approved by the Committee of Creditors and pending adjudication before this Tribunal. Under the said circumstances, the Learned Counsel for the Respondent sought dismissal of the present Application. 9. Heard the submissions made by the Learned Counsel for both the parties. The preliminary issue which is required to be adjudicated by this Adjudicating Authority is as to whether the RP was right in rejecting the claim of the Applicant on the ground that the Applicant does not qualify to be a 'financial creditor' in respect of the Corporate Debtor. In order to answer the said issue, it becomes imperative for this Adjudicating Authority first to examine the definition of a 'financial debt' as defined under Section 5(8) of IBC, 2016; (8) financial debt means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor in order to advance any loans or for financing any money towards the supply of goods. Secondly, it is required to be noted that none of the clauses contained in the Del Credere Agreement as referred by the Learned Counsel for the Applicant authorize/entitle the Applicant to proceed against any person who has not paid the amount. The Learned Counsel for the Applicant stated that since the Applicant has paid money on behalf the Corporate Debtor for the goods supplied by the mill owners, it is implied that he is a financial creditor. The said contention of the Learned Counsel for the Applicant is required to be brushed aside in view of the fact that the claim of the Applicant, in the absence of any legally binding agreement between the parties, is not falling under any of the category stipulated under Section 5(8)(a) to (i) of IBC, 2016 in order to qualify as a 'financial creditor'. 11. Further, the contention of the Learned Counsel for the Applicant that the Corporate Debtor in order to discharge his liability has issued two cheques for an amount of ₹ 26,92,510/- and ₹ 2,90,792/- dated 26.09.2019 does not hold much water because the issuanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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