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TMI Blog2023 (8) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... (IB) No. 90/Chd/CHD/2018 for the resolution of a debt of Rs. 52,64,161.64/- allegedly payable by the Corporate Debtor as on 31.12.2017 has been admitted, moratorium under Section 14 of the Code was declared and Madan Gopal Jindal (Respondent No. 3) was appointed as an Interim Resolution Professional (in short 'IRP'). 2. At the time of preliminary hearing on 18.12.2019, this Court passed the following order:- "Learned counsel for the Appellant submits that 'M/s. V.I.R. Foods Ltd.' is an entity controlled by the minority shareholder (Financial Creditor) of 'M/s. White Water Hospitality Private Limited' (Corporate Debtor). It is submitted that the application under Section 7 of the 'I&B Code' was not maintainable for the following grounds: (i) The 'debt' was barred by limitation; (ii) The 'MoU' was irrelevant as alleged; and (iii) The records shows that there is no 'debt' payable in fact. Let notice be issued on the Respondents by Speed Post. Requisites along with process fee, if not filed, be filed by 19th December, 2019. If the Appellant provides the e-mail address of Respondents, let notice be also issued through email. Post the case 'for Admission (After Notice)' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds payable by the CD Company on account of interest levied @ 18% p.a. (daily simple interest) on the total advanced loan alongwith outstanding principal due and payable to the Applicant as on 30.06.2017. Total amount unpaid - Operational Deb is Rs. 50,91,854.79/- stands payable by the CD Company to the Applicant as on 30.06.2017. Working for computation of default are set out in Annexure P-3)" 7. This application, however, was withdrawn by the alleged Financial Creditor in terms of an order dated 15.12.2017, which is reproduced as under:- "After arguing for some time, learned counsel for the petitioner seeks permission to withdrawn the instant petition due to some technical defect with liberty to file fresh one on the same cause of action. Permission is granted. The instant petition is dismissed as withdrawn with liberty aforesaid." 8. Thereafter, the alleged Financial Creditor filed the present application on 12.03.2018 in which the alleged Financial Creditor, for the first time, introduced a Memorandum of Understanding (MOU) dated 02.05.2012, in Part IV 'particulars of financial debt' of Form 1, about which the following averments have been made that "a MOU dated 02.05.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor also contended before the Adjudicating Authority that the MOU dated 02.05.2012, which has become the basis of the second application never saw the light of the day, not being a part of the first application and hence, it is a fabricated document and cannot be relied upon. However, this submission has been rejected by the Adjudicating Authority by observing that "the various contentions raised by the Respondent-Corporate Debtor with regard to fabrication and forgery of documents by the petitioner and also various allegations with regard to transactions entered into between the parties, need not be gone into in detail for the purpose of consideration of admission of this CP under the provisions of the Code and the Regulations made thereunder". The Adjudicating Authority merely recorded a finding that since there is an admission of debt of Rs. 43 Lacs under the heading of unsecured loan in Annexure A-16 i.e. auditor's report of the corporate debtor, therefore, the Adjudicating Authority is not required to delve with the issue as to whether the MOU dated 02.05.2012 is forged and fabricated. 14. While assailing the finding of the Adjudicating Authority, Counsel for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, records and evidence of default in part V." 15. However, in the present case, the Adjudicating Authority has recorded a finding in favour of the Respondent that on 11.07.2017, when the first petition was filed by the alleged Financial Creditor, the date of recalling of the financial assistance in terms of clause 4 of the MOU dated 02.05.2012. However, in our considered opinion, this finding cannot be accepted, the date of default cannot be 11.07.2017 which in fact the date of filing of the petition under Section 7 of the Code because the date of default has to be mentioned in the petition and only thereafter, the application is filed under Section 7 of the Code. It means that the date of default has to be before the date of filing of application under Section 7 of the Code and the date of filing cannot be presumed to be the date of default. As a matter of fact, the Adjudicating Authority, while answering the contention of the Corporate Debtor that the application under Section 7 was not within limitation, has observed that "therefore, we can say that the financial assistance was recalled on 11.07.2017. Since, the instant CP (IB) No. 90/Chd/CHD/2018 was filed on 16.03.2018, it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and contended that it is a case where there was collusion for the purpose of obtaining order of admission in regard to the initiation of CIRP against the Corporate Debtor. In our considered opinion, this aspect should have been looked into by the Adjudicating Authority and should not have brushed aside only on the ground that it is not required to look into for the purpose of consideration of admission of the CP. 20. In the end, even after taking into consideration the MOU dated 02.05.2012, which is the basis of the order of admission having been passed by the Adjudicating Authority and relied upon heavily by the alleged Financial Creditor, the application under Section 7 could not have been filed until and unless the financial assistance given by the Financial Creditor to the Corporate Debtor has been recalled which is a fact conspicuous by its absence in these proceedings. 21. Thus, looking from any angle, the order of admission passed by the Adjudicating Authority is found to be patently illegal and therefore, while allowing the appeal, the said order is hereby set aside although without imposing any costs and with that any application pending in this appeal is also here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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