9911796707
TMI Blog2022 (2) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor. ii. The Corporate Debtor intentionally denied to allot shares to the Petitioner' till date, inspite of the follow up by the Petitioner on regular basis. iii. A joint meeting was scheduled and held on 20.10.2019 at the residence of one Mr. Kaikaala Satyanarayana, which was attended by one Mr. P.V. Narasimha who is the father of the Director of Corporate Debtor. iv. The Corporate Debtor admitted and agreed to pay the amount of Rs. 10 Lakhs in monthly instalments starting from 20.11.2019 by way of post-dated cheques and written agreement. But the Corporate Debtor failed to submit post-dated cheques and the agreement. v. The Corporate Debtor is also liable to pay interest @12% ' for the delay period. 3. The Corporate Debtor filed counter contending as follows: i. This case is filed without any document acknowledging the debt, agreement or negotiable instrument, cheque agreeing to repay the amount sent to the account of the Corporate Debtor. The Petitioner did not even take permission of Corporate Debtor before depositing the amount in the account of the Corporate Debtor on that ground the petition is liable to be dismissed. The Petitioner made a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Debtor, since the amount transferred to the Corporate Debtor took place on 29.11.2017. vii. The Petitioner mentioned the date of default as 13.02.2018. While filling up Part-V from at page 6 of material papers, it was mentioned as "not applicable" against column No. 3 to show record of default with the information utility if any. Against column No. 8 of Part-V annexure it was mentioned as "Not Applicable". The Petitioner did not file any documents emanating from the office of Corporate Debtor containing admitted date of refund of the amount or admitted date of allotment of shares, in which case, no default can be triggered. viii. It is false to contend that the Corporate Debtor agreed to issue post-dated cheques and written agreement to the Petitioner on 28.10.2019. The Creditor has to explain why he waited till May, 2021 if really default triggered on 13.02.2018 that too when the Corporate Debtor failed to issue any cheques on 28.10.2019. On the above grounds the Corporate Debtor seeks to dismiss the Petition. 4. The Petitioner filed his reply to the counter of the Corporate Debtor contending as follows: i. The Petitioner has served a legal notice dated 07.06.2020 with a ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner is that he has filed the application before the NCLT, Hyderabad Bench and that the same was returned and presented here and hence it has to be considered that this application is filed on the date on which it is filed before the NCLT Hyderabad Bench which is prior to the notification admittedly. But after affording opportunity to the Petitioner to produce the evidence regarding the filing of the application before the NCLT Hyderabad Bench and its returned, the Petitioner failed to produce such evidence. The judgements relied upon the Petitioner's counsel are in favour of the Corporate Debtor that the notification cannot be applied retrospectively. In the reply written submissions it is contended that the notification issued by the Central Government does not confer power upon the Tribunal to act retrospectively. But the Petitioner's Counsel fails to show that the Petition was filed before the NCLT, Hyderabad Bench prior to the notification. Hence the disputed amount being less than the pecuniary jurisdiction of this Tribunal, the Application needs to be rejected on that count. II. Whether the WhatsApp conversation between the Parties can be admitted as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot form part of a record as an evidence whereas the WhatsApp messages are filed to be admitted as evidence. Hence it cannot be said that Section 20 of the Companies Act permits a party to produce electronic evidence without it being accompanied by the section 65B certificate. Hence, on the 2nd ground also the petition fails. III. Whether the Petitioner can be termed as Financial Creditor and whether the amount i.e., admittedly received by the Corporate Debtor can be termed as financial debt within the meaning of Section 5 (8) of IBC. It is an admitted fact that the petitioner moved similar petitions before the NCLT, Hyderabad Bench and it is admitted that the facts and issues involved in those cases are the same as in this case. NCLT Hyderabad Bench has dismissed the Petition on the ground that the Petitioner failed to prove that the amount lent to the Corporate Debtor is a financial debt and that the Petitioner is a Financial Creditor. The definition of Financial Debt is incorporated in Section 5 (8) which is as follows: "Section 5(8) "financial debt": means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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