Mukesh Kumar vs Ambrane India Pvt Ltd
COMPANY APPEAL (AT)(INS) NO.659/2022
Facts:
1.In the month of April, 2017 the Corporate Debtor approached the Financial Creditor through its Director namely Mr. Mukesh Kumar, Appellant for obtaining financial assistance for a short span of time. On the request of the appellant herein the Board of financial creditor on 20th May, 2017 resolved to grant a loan of Rs.1,01,00,000/- (Rupees One crore one lakh only) to the Corporate Debtor along with interest @ 9% per annum to be compounded on 31st March, 2018.
2.Financial creditor in a petition filed under Section 7 of the IBC before the Adjudicating Authority claimed that since the loan amount with interest was not paid despite terms and conditions put for payment by 31st March, 2018, the Financial creditor requested the Corporate Debtor for payment and since payment was not made the Financial Creditor on 06.08.2019 sent legal notice through its counsel to the Corporate Debtor and finally due to non-payment of the financial debt the Financial Creditor/Respondent No.1 was constrained to file application under Section 7 of the IBC for initiation of the CIRP.
3. Vide order dated 06.04.2022 CIRP was initiated against the Corporate Debtor against which the present appeal has been preferred.
Issue: Whether the appeal is liable to be admitted?
Arguments:
For Appellants:
1.Counsel for the appellant submitted that there was no written agreement regarding loan and as such there was no financial debt. According to Mr. Anand in absence of financial debt the application filed under Section 7 was required to be rejected outrightly. It was submitted that the said amount was an investment by the financial creditor in respect of the immovable property of the Corporate Debtor. Counsel has also referred to para 4 of the impugned order at Page 30 to show that the amount of Rs.1,01,00,000/- has been shown as current liability in the balance sheet of the corporate debtor to Financial Creditor.
2.Counsel submitted that amount of Rs.1,01,00,000/- loan amount rather it was the booking amount in respect of property 13/13 of the Corporate Debtor, has drawn our attention to certificate issued by National E-Governance Services Ltd (hereinafter referred to as NeSL) and he has referred to certificate and submits that this certificate also shows that the debt is not a financial debt but rather an operational debt.
3.It was emphatically argued that there was no loan transaction and in absence of loan agreement and also no reliable document, it is a specific case that there was financial debt and in absence of financial debt the learned Adjudicating Authority was not entitled to admit the application filed under Section 7 of the IBC
For Respondent:
1.Counsel emphatically argued that there is no reason for interference with the impugned order particularly in view of the fact that in the present case default has taken in the month of April, 2018 and petition for initiation of CIRP has been filed in the year 2019 itself. However, due to many reasons including Covid 2019 delay had occurred and finally by the impugned order dated 06.04.2022 the application filed under Section 7 was admitted.
2.Counsel argued that since all the ingredients as contemplated under Section 7 of the IBC was complete the learned
Adjudicating Authority has rightly passed the order of admission for initiation of CIRP.
Decision: Hon’ble NCLAT uphled the decision of NCLT admitting the application.
Rationale:
1.Hon’ble NCLAT noted that Board Resolution makes it clear that one Mr. Ashok Rajpal whole time director of the company Ambrane India Pvt Ltd was authorised to take all the necessary steps regarding sanctioning and disbursement of the loan amount of Rs.1,01,00,000/- alongwith interest @ 9% per annum which was to be compounded on 31.03.2018. It was also clarified that loan shall be disbursed in one or more tranches and the loan amount was to be repaid on or before 31.03.2018 alongwith interest thereto.
2.It also noted that since there was no written agreement for sanctioning loan with interest the appellant has taken a futile stand that in absence of any written agreement it cannot be said that there was a financial debt. The circumstances and documents which have been brought on record suggest that impliedly there was an agreement for providing loan to the corporate debtor for time value and also with interest.
3.Proviso 1st to Section 7 (5) speaks that only for rejection of an application reasons are required to be assigned. Meaning thereby if an application fulfils certain criteria, the Adjudicating Authority is to admit the said application and while admitting there is no requirement for assigning detailed reasons.
Order Copy:
