TMI Blog2022 (9) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of default has been mentioned in the Form 5 of the petition. Further, the brief synopsis provided in the petition mentions that the last payment was made on 04.11.2016. in the absence of the date of default, the date of cause of action cannot be determined. Since the MOU has been used to establish the basis of the financial relation with the Corporate Debtor, the same cannot be used to support the claims of the petitioners who are not parties to the MOU. The Financial Creditors contention that the other financial creditors gave the money to the Corporate Debtor on behest of the said MOU, and at the request of Shri Shyam Sundar Poddar and Shri Sital Kumar Poddar, is untenable in absence of any document supporting the same - As an evidence of the same, the Corporate Debtor has provided the payment details which show that amounts equal to the principal sums lent by the Financial Creditors being Impex India Inc., S.K. Engineering, SRMB Ionic International, Bimal Jajodia, Deepti Poddar, Nirmala Poddar, Manju Lohia and Shyam Sundar Poddar (HUF) have been transferred by the Corporate Debtor. The Financial Creditors, in order to establish default of re-payment on part of the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of Debt. Part V contains the documents, records and evidence of default. 6. Submissions on behalf of the Financial Creditor: 6.1 The case of the Financial Creditors is that by way of a Memorandum of Understanding (MOU) dated 09.11.2013 between the directors of the Corporate Debtor as party of the first part and Petitioner No.s 1 and 2 as party of the second part, petitioner No.s 1 and 2 jointly agreed to give a loan to the Corporate Debtor for an amount not exceeding ₹69,00,000/- with terms agreed between the parties therein and compound interest payable @18% per annum calculated at annual rests. 6.2 As per the said Memorandum of Understanding it was also stated that the First Party being the corporate debtor had approached the second party being the Financial Creditor to join them as strategic partner to finance working capital. 6.3 As per the said Memorandum of Understanding, the other salient terms and conditions were as follows: a. That the party of the First part shall execute separate loan agreement regarding financial assistance by the party of the Second Part. b. That the party of the Second Part, to provide a contribution of ₹80 Lakh ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om, being Annexure E; e. Bank account statements of the Corporate Debtor from, being Annexure F 7. Submissions on behalf of the Corporate Debtor: 7.1 It is submitted that as per the document annexed in the said petition, it appears that an undated Memorandum of Understanding was executed by and between Aloke Kumar Banerjee, Mouha Banerjee, Priyam Kumar Ghosh and Rajib Guha on the one hand and Shyam Sunder Poddar, and Sital Kumar Poddar on the other hand. The Corporate Debtor is not party to such agreement and is not bound by such agreement. The Corporate Debtor being a separate entity from the individuals who have allegedly signed the Memorandum of Understanding is not bound by such agreement. Thus, there is no financial debt against the respondent. Accordingly, there is no question of default of the Corporate Debtor in respect of the alleged transaction. 7.2 It is also stated that save and except the applicant nos.1 and 2 no other applicants are parties to the alleged Memorandum of Understanding and therefore cannot be impleaded as financial creditor in respect of the alleged claim. Thus, on that score itself the application is liable to be dismissed. 7.3 There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayments in terms of the said agreement dated 9th November, 2013. 8.4 The Corporate Debtor has deliberately not raised any dispute relating to the reliefs sought in the instant application. Since, there is no dispute regarding the corporate debtor's liability and the issuance of the instruments is an unequivocal promise to pay. 9. Supplementary Affidavit dated 30th September 2019 on behalf of the Financial Creditors: The instant Supplementary Affidavit has been filed by the Financial Creditors to bring on record additional documents being the cheques dishonoured by the Corporate Debtor, along with the return memos. 10. Analysis and Findings: 10.1 We have heard the Ld. Counsel appearing on behalf of the Financial Creditors and the Ld. Counsel appearing on behalf of the Corporate Debtor and perused the record. 10.2 On perusal of record, it can be seen that the date of default has not been mentioned in the petition. According to section 3(11) of the Code, a debt means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. Further, according to section 3(12), default means non-pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Poddar have cumulatively transferred ₹90,000/- to the Corporate Debtor. The remainder of the amount claimed in the instant petition i.e ₹69,00,000/- has been transferred by the petitioners who are not parties to the MOU. Since the MOU has been used to establish the basis of the financial relation with the Corporate Debtor, the same cannot be used to support the claims of the petitioners who are not parties to the MOU. The Financial Creditors contention that the other financial creditors gave the money to the Corporate Debtor on behest of the said MOU, and at the request of Shri Shyam Sundar Poddar and Shri Sital Kumar Poddar, is untenable in absence of any document supporting the same. If any internal agreements were executed amongst the petitioners herein, the same has not been produced on record and therefore cannot be held binding on the Corporate Debtor. 10.7 As such, only the claims of Shri Shyam Sundar Poddar and Shri Sital Kumar Poddar for ₹90,000/- are tenable. However, the said claims, on their own do not meet the minimum financial threshold covered under the Code at the relevant point of time i.e Rupees One Lakh. 10.8 Further, in such case the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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