2018 (8) TMI 1269

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....there is a dispute in existence with the Corporate Debtor about the debt and default, therefore, the application under Section 7 was not maintainable. Further, according to learned counsel for the appellant, the respondent do not come within the meaning of 'financial creditor' as defined under section 5(7)&(8) of the I & B Code. 3. The Adjudicating Authority held that the corporate debtor utterly failed to show any dispute and/or that the amount as claimed was not due. The Authority further held that there is an evidence of default. 4. Learned counsel appearing on behalf of the appellant submitted that the dues of 'Ajay Gopaldas Samat HUF and Mrs. Manisha A. Samat' has already been paid. In the pleadings details of payment made between August 2015 to July 2016 have been shown giving reference to the bank statements attached with the appeal. 5. Mr. Ajay Gopaldas Samat was directed to appear in person along with affidavit to state as to in terms of which agreement he had received the amounts by cheques on different dates as shown and mentioned at pages 'D' and 'E' of the appeal. The respondent has filed affidavit and taken plea that the amount has been paid in terms of other....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ndent has also executed a hundi in my favour which is produced as Annexure 'R21'. 6. I state that as per the above understanding, the interest amount for the entire loan amount, calculated on the reducing balance method, would amount to Rs. 4,12,500/- (Rupees Four Lakhs Twelve Thousand Five Hundred Only) which had to be paid up-front, before the repayment starts. I state that, pursuant to the above, as per the terms of the Loan Agreement dated 19.08.2014 and the understanding, the 3rd Respondent paid the interest of Rs. 4,12,500/- (Rupees Four Lakhs Twelve Thousand Five Hundred Only) up-front, which was credited in my account on 20.08.2014. Thereafter, the 3rd Respondent has repaid an amount of Rs. 35,00,000/- (Rupees Thirty-Five Lakhs Only) towards principal as per the repayment schedule and the remaining amount of Rs. 15,00,000/- (rupees Fifteen Lakhs Only) is currently outstanding. These payments are reflected in the table at page 'D' of the appeal under the caption "List of Payments made to Ajay G.Samat" and have no connection whatsoever with the Loan Agreement dated 17.07.2014, out of which the present proceedings arise. I state that I am entitled to interest @ 18% pe....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... mortgaged its property as a security for the Loan extended. The same has also been admitted by the Respondent at Para 4 of its Affidavit in Reply dated 14.02.2013. Thus it is clear that the loans that have been advanced have been adequately secured. It would also be pertinent to note that on demand there were blank letter heads and Open Cheques; that were handed over by the Appellant to Ajay Samat. A Copy of Eight Agreements dated 21.01.2013; 26.08.2013; 11.12.2013; 13.03.2013; 17.07.2014; 19.08.2014; 10.11.2014 and 29.01.2015 is attached herewith as Annexure A1(Colly). 6. That in pursuance of the aforesaid Agreements; Manisha Samat; Ajay Samat (HUF) have extended loan amount of Rs. 5,11,00,000 (Rupees Five Crores Eleven Lakhs) to Respondent No. 3 company. A detailed breakup of the aforesaid is reproduced herein below: - SL. No. NAME LOAN AMOUNT 1. AJAY G SAMAT 3,66,00,000.00 2. MANISHA A SAMAT 95,00,000.00 3. AJAY GOPALDAS SAMAT (HUF) 50,00,000.00   TOTAL Rs. 5,11,00,000.00   SL. NO. Date Cheque No. Bank Name Amount 1. 21.01.2013 000051 Kotak Mahindra Bank 7,500,00 2. 2....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in Part III, particulars of the financial debt in Part IV and documents, records and evidence of default in Part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point....