9911796707
TMI Blog2019 (4) TMI 2087X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Insolvency Resolution Process (CIRP) as against the Corporate Debtor (CD). The petitioner claims that it is a company registered under the provisions of Companies Act, 1956 under the name and style of Prayag Polytech Private Limited and the date of incorporation is stated to be 16th August, 1982 and the registered office of the petitioner being situated at C-587, Industrial Area, Phase-I, Bhiwadi - 301019, Rajasthan, India. The person authorized to file the above petition is stated to be one Mr. Milan Aggarwal authorized vide Board Resolution dated 18.12.2018. Part-II of the application furnishes the details of the CD, perusal of which discloses that CD had been incorporated on 9.9.1996. The nominal share capital and paid-up share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received from the CD. It is further averment of the petitioner that since the amount was advanced against the time value of money, it is a financial debt taking into consideration the provisions of Section 5(8) of IBC, 2016. It is also stated in the petition under Part-IV of the application that the balance sheet for the year 2017-18 of the CD has also been annexed as an evidence of the amount due to the petitioner/FC. Thus, the amount in aggregate of Rs. 1,23,15,753/- is being claimed as amount in default since 14.1.2019. 3. Pursuant to the notice issued to the CD, the CD has also filed a reply wherein it is contended that a sum of Rs.50,00,000/- on 8.6.2017 and a further sum of Rs.50,00,000/- on 12.6.2017 was disbursed to the CD as a par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the above fact it is contended were being suppressed by the FC/petitioner at the time of filing of this petition seeking to invoke the provisions of IBC, 2016 and in the circumstances this Tribunal should impose a penalty under Section 65 read with Section 75 of IBC, 2016 which this Tribunal is well within its power to impose upon the FC for initiating these proceedings with a malicious intent and for knowingly providing false information. Taking all the contentions of the respondent/CD, it seeks of this Tribunal to dismiss the petition with exemplary costs. 4. Oral submissions of Ld. Counsel of both the parties were heard in detail during which both the Counsels pointed out towards the documents filed in support of the contentions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 5. From the above definitions, it is quite clear that a debt can be considered as a 'financial debt' if it is disbursed against the consideration for the time value of money. It is also required to be noticed that under the provisions of Section 7 of IBC, 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vate Limited can suo-moto re-pay the same any time (before five years). Place: New Delhi For Prayag Polytech Private Limited Dated: 28/08/2018 Sd/- Director Milan Aggarwal GST NO.07AAACP1009R3Z9 Pan No.- AAACP1009R 6. During the course of oral submissions, it was also pointed out by Ld. Counsel for the CD that the Director who signed on behalf of FC, namely, Mr. Milan Aggarwal has also filed this petition and sworn affidavit in relation to the petition and the averments contained therein. Ld. Counsel for the petitioner on the other hand points out to the documents as filed by the CD itself for the year ended 31.3.2018, perusal of which clearly shows that a sum of Rs.1,00,00,000/- is recognized as 'other loan and advances' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) There must be disbursal of loan amount; ii) Such disbursal should be made for a consideration for time value of money; and iii) A default should have arisen either in the payment of interest or in the payment of principal amount or both on the part of the CD. 9. The above conditions are to be cumulatively satisfied with by the FC before this Tribunal can admit the petition and as a consequence unfold the CIRP as against the CD. However, in the instant case even though disbursal of Rs. 1,00,00,000/- by the FC to the CD is not disputed. However, in relation to whether it is made available for consideration for time value of money as well as in relation to existence of default on the part of CD at the time of initiation of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
