TMI Blog2022 (12) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... ates other documents in order to prove the existence of Financial Debt, the amount and date of default, on basis of which the Adjudicating Authority has come to the conclusion that the Financial Creditor has successfully proved the debt and default. The most important factor to be taken into consideration is that the Corporate Debtor in its reply has neither denied debt nor the default. What is contended by the Corporate Debtor is that it was not proved by the documents as envisaged by Section 7 application. Section 7 application envisage other documents also to prove the debt and default. The Corporate Debtor has also made allegations against the Financial Creditor that the Financial Creditor itself is undergoing insolvency resolution a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm Loan of Rs.90 Crores in favour of the Corporate Debtor by Sanction Letter dated 15.01.2018. A Loan Agreement dated 26.03.2018 was entered between the Corporate Debtor and the Financial Creditor. Another Infrastructure Term Loan of Rs.280 Crores in favour of the Corporate Debtor by way of Sanction Letter dated 24.03.2018 and a Loan Agreement dated 29.03.2017. (ii) The Corporate Debtor executed a Deed of Undertaking dated 26.03.2018 in respect of Infrastructure Term Loan facility of Rs.90 Crores. Similarly, the Corporate Debtor executed a Deed of Undertaking dated 29.03.2017 in respect of Infrastructure Term Loan facility of Rs.280 Crores. (iii) The amount was disbursed by the Financial Creditor to the Corporate Debtor as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditor in support of Section 7 application has not filed any statutory certificate as required by Section 65B(4) of the Evidence Act, 1872. The Financial Creditor was required to file the certified copies as prescribed under clause (3) of Section 2 of the Bankers Book Evidence Act, 1891 and in absence of such certified copies the Court should not be obliged to admit Section 7 application. No Balance Sheet admissible as evidence was annexed with the Section 7 application, hence, the application was liable to be rejected. Referring to statement of disbursement to the Corporate Debtor as annexed by the Financial Creditor alongwith the Rejoinder affidavit, it was submitted that said statement was a statement prepared only by IL FS and was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submissions which are now being advanced in support of the Appeal does not make any ground to reject Section 7 Application. 5. We have considered the submissions of learned counsel for the parties and perused the record. 6. Regulation 2A which has been added in Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 by amendment w.e.f. 13.11.2020 is as follows: [2A. Record or evidence of default by financial creditor. For the purposes of clause (a) of sub-section (3) of section 7 of the Code, the financial creditor may furnish any of the following record or evidence of default, namely:- (a) certified copy of entries in the relevant account in the bankers book as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat was sought to be alleged that put options were exercised by the Financial Creditor without the situation occurring for such options in terms of the Loan Agreements dated 26.03.2018 and 29.03.2018. There being no denial of the Sanction Letters and the Loan Agreements, the submission which is much pressed by learned counsel for the Appellant is that the statement of disbursement is the statement which has been prepared by the Financial Creditor itself and was not the statement issued by a Bank. 9. The Appellant in the Rejoinder filed before the Adjudicating Authority has brought the statement of disbursement to the Corporate Debtor on the record, which statement was prepared by the Financial Creditor itself and bears seal and signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessfully proved the debt and default. The most important factor to be taken into consideration is that the Corporate Debtor in its reply has neither denied debt nor the default. What is contended by the Corporate Debtor is that it was not proved by the documents as envisaged by Section 7 application. Section 7 application envisage other documents also to prove the debt and default. 13. Learned counsel for the Appellant has placed reliance on judgment of Hon ble Supreme Court in Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 , where the Hon ble Supreme Court had occasion to consider Section 65B (4) of the Evidence Act, 1872. The said judgment was delivered by the Hon ble Supreme Court in reference to trial of ele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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