TMI Blog2023 (7) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority , it is seen that Rs. 4,41,25,000/- was disbursed to the Corporate Debtor from time to time starting from 05.12.2012 to 03.12.2018 and total amount claimed to be in default as on 30.06.2021 was Rs. 7,57,56,215/-, which included the interest from 01.04.2016 @ 12% p.a. We also note that the Respondent No. 1 is a shareholder of the Corporate Debtor holding 24.63% of equity capital. Admittedly by the Appellant and evidently from the records made available before us, the Corporate Debtor paid interest @ 9% to the Respondent No. 1 for the Financial Year 2016-17 and for the Financial Year 2017-18 the Corporate Debtor paid interest @ 12% to the Respondent No. 1 and a statement of confirmation of account was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was clear financial debt in form of loan given by the Respondent No. 1 to the Corporate Debtor and this could not have been treated in any way as equity infusion/ share premium in Corporate Debtor. Appeal dismissed. - Company Appeal ( AT ) ( Insolvency ) No. 718 of 2023 - - - Dated:- 4-7-2023 - [ Justice Ashok Bhushan ] Chairperson And [ Naresh Salecha ] Member ( Technical ) For the Appellant : Ms. Anjali Sharma Ms. Simmi Bhamrah , Advocates For the Respondent : None JUDGMENT NARESH SALECHA , MEMBER ( TECHNICAL ) 1. The present appeal has been filed under Section 61 of the Insolvency Bankruptcy Code, 2016 (in short Code ) against the impugned order dated 23.03.2023 in C.P. 745/IB/MB/2021 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decided to invest in the Corporate Debtor through his wife Mrs. Neeta Nagda and their nominees. 4. Learned Counsel for the Appellant submitted that the Respondent No. 1 contributed towards funds, holding around one-third of the equity shares together with their nominees, in the Corporate Debtor . Learned Counsel for the Appellant stated that as per their understanding each of three investors i.e., Mr. Satish Balan, Mr. Dungarshi Chheda and Mrs. Neeta Nagda, were required to infuse funds in the Corporate Debtor as and when required in accordance with their respective shareholding and were also made entitled to share profits of the Corporate Debtor accordingly. 5. Learned Counsel for the Appellant stated that the Respondent No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Debtor and therefore the Appeal deserve to be allowed and the impugned order need to be set aside. 8. From the above facts, the only issue which has been raised and need to be decided by this Appellate Tribunal is that whether money contributed by the Respondent No. 1 along with her nominees was in nature of financial debt or investment by way of equity in the Corporate Debtor . 9. From the perusal of the record especially part IV of the application filed by the Respondent No. 1 before the Adjudicating Authority , it is seen that Rs. 4,41,25,000/- was disbursed to the Corporate Debtor from time to time starting from 05.12.2012 to 03.12.2018 and total amount claimed to be in default as on 30.06.2021 was Rs. 7,57,56,215 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest to the Respondent No. 1 and also deducted TDS for two financial years as discussed earlier. The plea taken by the Appellant that since no Loan Agreement was entered into between the parties, the said loan cannot be treated as financial debt in terms of Section 5 (7) and 5(8) of the Code. However, on further query put by this Appellate Tribunal to the Appellant , the Appellant could not give any reason as to why interest was paid to the Respondent No. 1 for two financial years and why TDS was deducted along with confirmation letter to the Respondent No. l. The only feeble submission was that Mr. Navin Nagda, persuaded the Appellant to structure the financial investments as loan in the books of the Corporate Debtor with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there have been clear acknowledgments which have been issued by the Corporate Debtor for the money received from the Respondent No. 1 which also mentioned the quantum of interest payment to be made by the Corporate Debtor to the Respondent No. 1. Similarly, we also take into account the fact that TDS was deducted regarding interest paid and the name of the Appellant as dedutor and the name of the Respondent No. 1 as deductee is clearly evident. This does not give any scope for benefits of the Appellant . 16. We are therefore convinced that there was clear financial debt in form of loan given by the Respondent No. 1 to the Corporate Debtor and this could not have been treated in any way as equity infusion/ share premium in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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