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TMI Blog2022 (2) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of the loan amount to the Applicant. It is seen that the Applicant had impleaded the Union of India. Ministry of Corporate Affairs as parties in this matter. As this is a Section 7 application under IBC, the Ministry of Corporate Affairs has no role to play and its inclusion in the array of parties is irrelevant and inconsequential. This matter is considered accordingly. 2. The Applicant/Financial Creditor is a Private Limited Company incorporated under the Companies Act, 1956 on 03.07.1985 and duly registered with the Registrar of Companies, Delhi, bearing CIN: U51909DL1985PLC021408. The registered office of the Applicant Company is at 111, Tribhuwan Complex, Ishwar Nagar, Mathura Road, New Delhi-10065 (Delhi). 3. The Respondent is a Private Limited Company, incorporated under the Companies Act, 1956 on 30.09.1999 and duly registered with the Registrar of Companies, Jaipur bearing CIN: U34300RJ1999PTC015907. The Registered Office of the Company is at Plot No. SP 238 (B & C), Industrial Area, Kaharani (Bhiwadi Extension), Bhiwadi, Alwar-301019 (Rajasthan). The Authorised Share Capital of the Respondent is Rs. 3,00,00,000/- (Three Crore Only) and the Paid-up Share Capital i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the necessary permission from the Reserve Bank of India to transfer the money abroad, the Corporate Debtor asked it to transfer the money to its account in India. On the request of the Corporate Debtor to transfer the said amount in his account in India the Financial Creditor disbursed a total amount of Rs. 3.50 crores on different dates. 9. A sum of Rs. 1,40,00,000/- was disbursed on 02.12.2016 vide Cheque No. 000274 H.D.F.C. Bank, Rs. 25,00,000/- by way of RTGS on 08.12.2016, Rs. 1,75,00,000/- vide Cheque No. 000186 dated 13.12.2016 H.D.F.C Bank and the remaining Rs. 10,00,000/- were disbursed on 15.12.2016 vide Cheque No. 000191 H.D.F.C. Bank. As per the loan agreement dated 04.12.2016 at Annexure-A-3, the said loan amount was taken by the Corporate Debtor to fulfill the requirement of the Earnest Money Deposit ('EMD') and participation in the bidding process of M/s. Sona BLW Precision Forge Inc. ('SPF'), 500 Oak Tree Drive, USA. 10. An agreement was signed by the Financial Creditor and the Corporate Debtor, wherein, Mr. Amit Rajput i.e., the Director of the Corporate Debtor accepted and acknowledged the debt of Rs. 3.50 crores of the Corporate Debtor and USD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present application. The earlier application was dismissed as withdrawn for which the applicant has not sought any permission to file a fresh application. Hence, the subsequent application is barred by res-judicata. 16. Reliance in this regard is placed on the following judgments:-- i. M/s. Suri Rajendra Rolling Mills Vs. Ms. Bengani Udyog Pvt. Limited in Company Appeal (AT)(Insolvency) No. 334 of 2020, ii. Sarguja Transport Services Vs. State Transport Appellate Tribunal, M.P. Gwalior & Ors., (1987) 1 SCC 5, iii. Bakhtawar Singh & Anr. Vs. Sada Kaur & Anr., (1996) 11 SCC 167, iv. Brookfield Technologies Pvt. Ltd. Vs. Shylaja Iyer & Ors. In Company Appeal (AT) No. 110 of 2020. 17. The Respondent has also submitted that the amount provided was not a loan transaction and was just a share application money as per the agreement dated 04.12.2016. The amount which was advanced by the Applicant to the Respondent was to have equity investment for acquiring the SPF in the USA. The Respondent has placed reliance on Pioneer Urban Land and Infrastructure Ltd. v. UOI, Writ Petition (Civil) No. 43 of 2019 and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court of India held that the entries in the Balance Sheet would amount to an acknowledgement of debt for extension of limitation under Section 18 of the Limitation Act. 22. Learned Counsel for the Petitioner/Financial Creditor placed reliance on the following judgments;-- i. Hon'ble Supreme Court of India delivered in the matter of Orator Marketing Pvt. Ltd. Vs. Samtex Desinz Pvt. Ltd. ii. Hon'ble NCLAT delivered in the matter of Sailesh Sangani Vs. Joel Cardoso & Anr. in Company Appeal (AT)(Insolvency) No. 616 of 2018, iii. Hon'ble Supreme Court of India delivered in the matter of H.P. Financial Corporation Vs. Anil Garg & Ors. (2017) 14 SCC 634. 23. In Orator Marketing (Supra) the Hon'ble Supreme Court of India has dealt with Section 5(8) of the Insolvency and Bankruptcy Code, 2016. It was held that the trigger for initiation of the Corporate Insolvency Resolution Process by the Financial Creditor under Section 7 of the IBC, 2016 is the occurrence of a default by the Corporate Debtor. 'Default means non-payment of debt in whole or part when the debt has become due and payable and debt means a lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Principle of Res Judicata under Section 11 CPC. In the case of Bakhtawar Singh & Anr. Vs. Sada Kaur & Anr., (1996) 11 SCC 167, the appellants failed to justify the permission to withdraw the case nor have they satisfied the ground of taking benefit of Section 14 of Limitation Act, however, in the instant case the withdrawal was in the lieu of the Settlement between the parties. 27. In the present case, withdrawal of the Company Petition was taken place only when the Adjudicating Authority after considering the fact of settlement permitted the petitioner to withdraw the petition in view of Rule-8 of IBBI (Application to Adjudicating Authority) Rules. 2016. 28. Other judicial pronouncements placed and relied upon by the learned counsel for the Respondent do not support his case. The Respondent further stated that mere an agreement by one of the directors of the Corporate Debtor to pay interest at 12% per annum during a certain period cannot be the sole ground to hold that debt shall be deemed to be a Financial Debt, and has relied on the Sanjay Kewalramani v. Sunil Parmanand Kewalramani & Ors., Company Appeal (AT) (Insolvency) No. 57 of 2018. 29. The Financial Creditor, in his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to meet the business requirements, etc. Further, an interest-free loan also falls under the definition of Financial Debt. 34. Upon a detailed consideration of the application and documents filed by the Applicant, it is apparent that the payment of the claim amount has been defaulted by the Corporate Debtor. Hence, this Adjudicating Authority is inclined to commence CIRP against the Corporate Debtor as envisaged under the provisions of IBC, 2016. 35. The Applicant has named one Mr. Deepak Arora with Registration No. IBBI/IPA-002/IP-N00122/2017-18/10291, duly registered with the Insolvency and Bankruptcy Board of India, to be appointed as the Interim Resolution Professional ('IRP'). The Applicant has filed his consent in Form 2 under Insolvency and Bankruptcy Board of India (Application to Adjudicating Authority) Rules, 2016, stating therein that no disciplinary proceedings are pending against the named IRP. 36. Consequences of commencement of CIRP shall be inter-alia as follows: (i) The Insolvency Resolution Professional proposed by the Applicant Mr. Deepak Arora is hereby appointed as the IRP to take over the affairs of the Corporate Debtor and dut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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