TMI Blog2022 (7) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 2019, whereas, as per the contention of the Corporate Debtor, only letter sent by the Financial Creditor to the Corporate Debtor is letter dated 08 May, 2020. The notice dated 08 May, 2020 by the Financial Creditor nowhere mentioned of their previous letter dated 09 January, 2019. It is also relevant to divulge that, albeit, the Balance Sheet as on 31 March, 2019 of the Corporate Debtor at page 36 of the Petition reflects the name of the Financial Creditor under the heading of Long- Term borrowings, but mere entry in the Balance Sheet cannot be construed as default; neither, the Independent Auditors report talks about any such default by the Corporate Debtor. For initiation of a CIRP under section 7 of the Code, one of the pivotal point is the establishment of default. However, in this instant application the authencity of the letter dated 09 January, 2019 as relied on by the Financial Creditor, which would be the cornerstone for initiation of CIRP against the Corporate Debtor, is itself under consideration before the Ld. CJM. It is also pertinent to mention that the proceeding before this Adjudicating Authority is summary proceeding, we cannot call on for the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the payment of interest at 9% per annum every financial year; and will refund immediately upon receiving a demand from the Financial Creditor for the return. b) Subsequently, the Financial Creditor agreed to disburse the loan as per the requirements of the Corporate Debtor on various dates starting from 29 November, 2016 to 08 March, 2017. During the said period the Financial Creditor provided a total amount of Rs.2,02,50,000/- (Rupees Two Crore Two Lakh Fifty Thousand only). c) The Corporate Debtor has provided for interest in its books of accounts, but however failed to pay the interest to the Financial Creditor. Although, from time to time the Corporate Debtor assured the Financial Creditor of the Payment of interest and even deducted TDS. d) The Financial Creditor repeatedly requested the Corporate Debtor to refund the entire loan amount along with interest payable but the Corporate Debtor failed to make payment and the same is still due and payable. e) On 09 January, 2019, the Financial Creditor by a way of letter [Annexure I at page 45 of the Petition] demanded refund of the Principal mount along with the agreed interest amount, from the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany and manufactured a forged letter dated 09 January, 2019 by putting the counterfeit seal and forged signature on the document. Annexure E of the Reply at Page 38 It is pertinent to mention that the same letter has been presented before the Adjudicating Authority for the initiation of the CIRP. f) Subsequently, on 21 January, 2021, the Police registered an FIR against the Financial Creditor for forgery and fabrication of the letter dated 09 January, 2019. The investigation in the said matter is ongoing and the Investigating Agency is yet to file its charge sheet before the CJM Court. g) It is also pertinent to mention that there is a non-compliance of Section 7(3)(a) of the Code and Part IV (2) of FORM 1 prescribed under the Insolvency and Bankruptcy (Application to Adjudicating Authority ) Rules, 2016 by the Financial Creditor. I.A. (IB) No.284/KB/2022 8. This is an application filed by the Corporate Debtor ( Applicant ) with regard to an issue raised by this Adjudicating Authority to the list of charges appearing in the Applicant s/Corporate Debtor s Master Data which is at page 14 of the Section 7 petition in respect of the immovable property even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to give collateral security against the inventory finance loan availed. It is stated that the said loan has also been repaid in full and Tata Capital Housing Finance Limited has issued a No Outstanding Certificate on 11 December 2019 and 26 December 2019 towards the loans of Rs.7,00,00,000/- (Rupees seven crores only) and Rs.13,00,00,000/- (Rupees thirteen crores only) respectively. 13. The relevant documents with respect to satisfaction of charge was filed by the 5 (five) companies with the Registrar of Companies, West Bengal, with respect to Betwa Cottage Private Limited but no documents for satisfaction of charge were filed onwards collateral security given by the said 5 companies. This was an inadvertent error committed by the lending organization and as such, the said loans are incorrectly reflecting in the records of Registrar of Companies. The Corporate Debtor is taking appropriate steps to get the same rectified with the Registrar of Companies. In fact, the above inadvertent error came into the Applicant/ Corporate Debtor's notice in course of hearing on 14 February 2022. 14. As on 31 March 2021, there are loans aggregating toRs.3,90,96,845 / - (Rupees three cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 09 January, 2019, the Corporate Debtor filed a complaint before the Ld. CJM, Alipore and the complaint was admitted by the Ld. CJM vide its order dated 31 December, 2020, and directions were given to the Police Authority for submission of enquiry report. Subsequently, on 14 January, 2021 an enquiry report was submitted by the Police Authority and on the basis of which an FIR has been registered by the Officer-in-Charge of the Rabindra Sarobar Police Station. 20. Further, upon perusal of both the letters, we have also observed that the notice dated 08 May, 2020 by the Financial Creditor nowhere mentioned of their previous letter dated 09 January, 2019. It is also relevant to divulge that, albeit, the Balance Sheet as on 31 March, 2019 of the Corporate Debtor at page 36 of the Petition reflects the name of the Financial Creditor under the heading of Long- Term borrowings, but mere entry in the Balance Sheet cannot be construed as default; neither, the Independent Auditors report talks about any such default by the Corporate Debtor.. 21. In light of the above facts and circumstances, we are of the view that for initiation of a CIRP under section 7 of the Code, one of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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