2019 (11) TMI 620 - Tri - Insolvency and Bankruptcy

Petition for Corporate Insolvency Process Dismissed, Petitioner Fined for Frivolous Filing

The Tribunal dismissed the petition for the initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of the Insolvency and Bankruptcy ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment - loan due and payable to the FC - Section 7 of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In view of the legislative mandate to dispose of the matters within a period of 14 days, which fact the Petitioner should have been well aware and further all the more, the shareholders/Directors of the Petitioner company are before this Tribunal in relation to inter se disputes and Petitions filed under Sections 241 and 242 of the Companies Act, 2013, this Tribunal is constrained to dismiss this Petition as the Petitioner has not been able to demonstrate on its own the existence of a 'financial debt' of which it is alleged to have been defaulted by the CD to the satisfaction of this Tribunal. There are no prima facie case and we are constrained to dismiss the Petition with a cost of ₹ 1.00 lakh imposed upon the Petitioner to be remitted to the Prime Minister's National Relief Fund within a period of 3 weeks from the date of this order as the Petition has been filed frivolously based on conjectures and surmises without proper documents being furnished consuming the valuable judicial time of this tribunal - petition dismissed. Issues Involved:1. Initiation of Corporate Insolvency Resolution Process (CIRP) under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC, 2016).2. Existence and validity of loan agreement and Memorandum of Understanding (MOU) between the parties.3. Determination of default in repayment of financial debt.4. Requirement of substantial documents to substantiate the loan and default.5. Compliance with the provisions of the Companies Act, 2013 regarding the loan.Detailed Analysis:1. Initiation of CIRP under Section 7 of IBC, 2016:The Petitioner, in the capacity of a Financial Creditor (FC), filed a petition against the Corporate Debtor (CD) seeking the initiation of CIRP under Section 7 of IBC, 2016. The petition disclosed that the FC is a company incorporated on 16th August 1982, represented by Mr. Milan Aggarwal, authorized via a Board Resolution dated 18.12.2018. The CD was incorporated on 29.8.2012 with a nominal share capital of Rs. 10,00,000/- and a paid-up share capital of Rs. 7,98,500/-. The petition proposed Mr. Abhishek Anand as the Interim Resolution Professional (IRP).2. Existence and Validity of Loan Agreement and MOU:The CD contended that there was a loan agreement dated March 10, 2014, and a subsequent MOU dated April 3, 2017, which stipulated that the FC would invest additional funds of Rs. 2.65 crores within 18 months. The FC denied the existence of these documents, claiming they were antedated, false, and fabricated. The FC argued that the CD paid interest and deposited TDS in favor of the FC, and the recall notice dated 2.1.2019 was sent to the CD to repay the loan, which was not honored.3. Determination of Default:The FC claimed that the financial debt disbursed to the CD was Rs. 3,45,00,000/- with accrued interest of Rs. 1,65,41,072/-, totaling Rs. 5,10,41,072/-. The CD argued that the FC breached the MOU by not infusing the requisite amount within the interest-free period, giving the CD the right to forfeit the outstanding amount. The CD also highlighted that the FC attended arbitration proceedings, adhering to the MOU terms.4. Requirement of Substantial Documents:The Tribunal emphasized that for a petition under Section 7 of IBC, 2016, the FC must substantiate the loan with substantial documents, including a 'financial contract' demonstrating the amount disbursed, tenure of debt, interest payable, and conditions of repayment. The FC failed to provide such a contract, relying instead on bank statements and Form 26AS, which were insufficient to establish the loan and default conclusively.5. Compliance with the Companies Act, 2013:The Tribunal referred to Section 186 of the Companies Act, 2013, which mandates certain procedures for granting loans, including passing a Board Resolution and maintaining a register of loans. The FC did not produce any Board Resolution or register entries, which are crucial for establishing the loan's legitimacy. The absence of these documents further weakened the FC's case.Conclusion:The Tribunal concluded that the FC failed to demonstrate the existence of a 'financial debt' and default to the Tribunal's satisfaction. The petition was dismissed with a cost of Rs. 1.00 lakh imposed on the Petitioner, to be remitted to the Prime Minister's National Relief Fund within three weeks. The Tribunal noted that the petition was filed frivolously, based on conjectures and surmises, without proper documents, consuming valuable judicial time.