TaxTMI 
TaxTMI 
2019 (8) TMI 972
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....sional viz., Mr. Vasudevan. The Applicant prayed as under :- a. That this Hon'ble Tribunal may be pleased to direct the Resolution Professional to admit the claim dated 27.03.2018 and 17.05.2018 filed in Form C by the Applicant herein for Rs. 4,04,54,000/- and Rs. 7,60,00,000/- respectively and to consequently admit the Applicant herein to the Committee of Creditors. b. Pass an order of ad-interim injunction restraining the Committee of Creditors of the 1st Respondent herein from finalizing any resolution plan or liquidation pending disposal of the instant application; and c. Pass such other order or orders as this Hon'ble Tribunal may deem fit. FACTS OF THE CASE IN MA/504/2018 3. It reveals from the record that the Corporate Debtor had availed short-term loans from one M/s. Udhyaman Investments Private Ltd., in repayment of which, the Corporate Debtor had defaulted. Consequently, M/s. Udhyaman Investments Private Ltd., filed CP/39/(IB)/CB/2018 under Section 7 of the I&B Code, 2016 wherein, this Authority vide its Order dated 12.03.2018 admitted the Application, CIR Process was initiated and the Respondent viz., Mr. Vasudevan was appointed as Interi....
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....0/- was advanced as "loan" by the Applicant to the Corporate Debtor repayable within a period of 24 months with an interest of 24% per annum. 10. The Applicant further states that the Corporate Debtor has given a Demand Promissory Note for the sum of Rs. 1,50,00,000/- in respect of the Loan Agreement Nos.1 & 2. In addition, the Corporate Debtor signed Cash Vouchers dated 05.12.2013 and 01.01.2014 for a sum of Rs. 60,00,000/- and Rs. 90,00,000/- respectively. 11. It is stated that the proof i.e. Loan Agreement Nos.1&2 and Cash Vouchers submitted by the Applicant along with the claim is in due compliance with the tenets of Regulation 8 of the CIRP Regulations, the Resolution Professional ought to have admitted the claim of the Applicant and consequently included her in the CoC. 12. The Applicant states that the documents filed by the Applicant in support of the Financial Claim No.2, are as follows:- i. MoU dated 05.10.2015 ii. Board Resolution iii. Cash Voucher iv. Bank Statement of Sujathaa Mehta v. Interest Computation. 13. As per the MoU dated 05.10.2015, it was agreed between the Applicant and the Corporate Debtor that a su....
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....o.2, it is contended that the Resolution Professional has admitted the claim to the extent of Rs. 90,00,000 and the balance has been rejected by the Respondent/Resolution Professional, for the following reasons:- i. Clause 2 of MOU dated 5th October, 2015 states that, "you will assist to liquidate the iron ore stock in the mines of TBAPL by participating in e-auction sale or by any other lawful means". Clause 3 states that you are entitled share of Rs. 60/- per MTS for efforts taken/to be taken by you in liquidating the iron ore stock". As per clause 4, you still retain the right of Rs. 60/ - per MTS even if the stocks are not liquidated. You have not explained to me on the efforts you have planned/taken to liquidate the stocks. As from 2012 onwards iron ore cannot be sold by any other means other than through e-auction by the Monitoring Committee appointed by the Hon'ble Supreme Court. There is no justification given by you in relation to the MOU more specific to Clauses (2), (3) and (4) which contravenes the order of the Supreme Court. Since, Iron Ore cannot be sold by any other means other than e-auction, monitored by the Monitoring Committee, such an agreement with the....
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.... and cash vouchers, both of which are dated. The demand note being undated does not create much fetter on its veracity or validity. * The 3rd reason cited by the Resolution Professional for rejection of the Applicant's claim is that witness No.1 has not attested in the loan agreement. It is trite in law that a loan agreement, per se, does not require a witness for it be enforceable. * The 4th reason quoted by the Resolution Professional for rejecting the claim is that interest amount on the loan is not offered as income in the Income-tax Returns. The very insistence on Income-tax Returns in cash transactions is irrelevant, as the same are not mentioned as relevant documentary evidence for proof of a financial debt. Thus, this reason stated by the RP should also be rejected, in limine. * The 5th reason that the concluding parts of the Loan Agreements appear to be an Agreement between a purchaser and vendor is stated to be vague and unclear. From a perusal of all the loan agreements, the dealings appear to be between the "lender" and the "borrower". * The 6th reason cited by the Resolution Professional for rejecting the claim of the Applicant is th....
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.... Applicant in relation to the MoU, more specific to Clauses (2), (3) and (4), which contravene the order of the Supreme Court. The reason stated by the Resolution Professional is incorrect and stems from an improper understanding of the commercial relationship between the parties. From the MoU dated 05.10.2015, it was agreed between the Applicant and the Corporate Debtor that a sum of Rs. 4,00,00,000/- was being advanced for "financial assistance" by the Applicant and the same was repayable along with financial charges, determined at Rs. 60/MTS upon the sale of iron ore, for extraction of which, the financial assistance is given. As per the MoU, the sum of Rs. 3,60,00,000/- which is the sum payable upon the sale of iron ore, shall otherwise also be payable, in case the liquidation of iron ore does not happen, thereby making it clear that a sum of Rs. 3,60,00,000/- was payable as interest, for time value of money, for Rs. 4,00,00,000/- given as financial assistance by the Applicant. Therefore, the reason for rejection of the claim of the Applicant is unsustainable in law and deserved to be rejected. * The 2nd reason cited by the Resolution Professional is that there is a mi....
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....on to financial assistance provided by the Applicant. Later, the Applicant re-submitted the claim submitted as Operational Creditor with a claim as Financial Creditor on 22.06.2018. After verifying the documents and claim submitted by the Applicant, the Resolution Professional vide his e-mail communication has not admitted the claims of the Applicant viz. Sujathaa Mehta. The Applicant had filed MA.394/IB/2018 before this Authority seeking inter alia for admission of her claims dated 27.03.2018 and 22.06.2018, and this Authority vide order dated 05.09.2018 directed the Resolution Professional to collate and verify the claims of the Applicant on or before 20.09.2018. 23. The Resolution Professional had verified and scrutinized the claims of the Applicant viz., Sujathaa Mehta along with the documents and found various discrepancies which attracted the provisions of IBC, 2016 relating to "Fraudulent Transactions" and the claim was rejected vide e-mail dated 20.09.2018. 24. The Respondent/Resolution Professional states that there are various claims received by the Respondent which are identically alleged to have been cash transactions, for which there is no evidence in the Corpora....
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....t disclose the same in the accounts of the Corporate Debtor. It is further stated that wherever a loan is availed through cash, Golakh Parida is involved which appears to be a scam plotted by Golakh Parida in collusion with authorized signatory of the Corporate Debtor. 29. The Resolution Professional states that all the loan agreements have a clause which states that "Loan shall be disbursed within a period of 15 working days from the date of execution of this Agreement". However, the loans were disbursed on the date of the agreement itself. Loan Agreements state that the Corporate Debtor has issued Post Dated Cheques as Security but the same has not been produced along with the claim documents. In all the loan agreements the witnesses are same and the recitals are verbatim except for change in the agreement date and loan amount. The statement of account of the Corporate Debtor as appearing in the books of the Applicant was signed by Sidharth Mehta, husband of the Applicant, which appears collusive in nature. 30. The Resolution Professional states that M/s. P & D Enterprises has filed an Application under Section 9 of the Arbitration and Conciliation Act, 1996 in AA.No.7/2014....
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....olution Professional states that the alleged claim made by the Applicant is not found in the accounts submitted by Golakh Parida pursuance to the directions of this Hon'ble Tribunal given in MA/8/IB/2018. 33. The Resolution Professional states that in the 2nd meeting of the CoC held on 02.06.2018, Golakh Parida made a statement that "what will happen to the creditors he had created in the books." The statement has been recorded in the minutes of the meeting. The said statement made by Golakh Parida would amount to clear admission that he has manipulated all the accounts of the Corporate Debtor and made fraudulent entries. 34. From the pleadings of the parties the issue that arises for consideration is as follows: Whether the claims of the Applicant based on the cash transactions are admissible in the absence of any entry in the Books of Account of the Corporate Debtor? 35. The Applicant has supported the claims filed before the Resolution Professional with (i) the Agreement dated 05.12.2013 for an amount of Rs. 60 Lakhs along with interest, (ii) the Agreement dated 01.01.2014 for an amount of Rs. 90 Lakhs along with interest and (iii) MoU dated 05.10.2015 for an a....
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....th the agreements. It is recorded in both the agreements that the loan will be disbursed within 15 days from the date of execution of the agreement, whereas the purported Vouchers for the amounts of Rs. 60 Lakhs and Rs. 90 Lakhs are bearing the same date on which the respective agreements were executed. The recitals of the agreements show that the Applicant agreed to provide the loan. In other words, it did not provide that the loan has been granted. Moreover, the Applicant claims that the loan has been paid in cash. There is nothing on record to suggest that the Books of Account of the Corporate Debtor are containing any of the entries in relation to the loan alleged to have been advanced to the Corporate Debtor. The purported Cash Vouchers dated 05.12.2013, 01.01.2014, which are not having any number, for an amount of Rs. 60 Lakhs and Rs. 90 Lakhs do not disclose that from whom the money has been received. For the sake of convenience, the image of one of the vouchers is given as below:- It is noted that all the five purported vouchers placed on record are verbatim. Further, a promissory note placed on record for an amount 1.5 crores did neither contain date nor witnesses, as t....
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....s of the Corporate Debtor vide Board Resolution passed on 09.07.2010. But, the transactions involving the advancement of the loan happened during 2013-2014, after a gap of three years and the fact that the MoU dated 05.10.2015 has been signed by the Managing Director viz., Sriram Vedam with the Applicant, it is not known as to whether during 2013-2014, Mr. Philip Edmund VanHaltren was holding the mandates for signing the agreements with the applicant which are in the nature of promises only to advance the loan. 42. As per the agreements dated 05.12.2013 and 01.01.2014, the time period for re-payment of loan was 24 months and as per the MoU dated 05.10.2015, the loan was to be repaid on or before 31.03.2016 and the CIR Process was initiated against the Corporate Debtor on 12.03.2018. There is nothing on record to suggest that the Applicant has ever issued a notice to the Corporate Debtor or initiated arbitral proceedings as mentioned in the Loan Agreements and the MoU, or even filed any Civil Suit for recovery on the basis of the Promissory Note amounting to Rs. 1.5 Crores. 43. All these circumstances create a reasonable doubt about the genuineness of the cash transactions as ....
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....solution Professional through electronic mode and all other documents were submitted by hard copy, which is in contravention to the requirements of Form- 'A' Therefore, the claims filed by the Applicant/financial creditor before the Resolution Professional have rightly been rejected, as it is well settled proposition of law that 'if a statute provides for a thing to be done in a particular manner, then it has to he done in that manner and in no other manner'. This view is fortified with the ruling of the Apex Court given in Chandra Kishore Jha v. Mahavir Parsad AIR 1999 SC 3558. 46. Further, in this case, except for an amount of Rs. 90 Lakhs which was paid through banking transaction and admitted by the Resolution Professional, the requirements for existence of debt due to the Applicant/financial creditor as provided under Regulation 8 of Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 are not satisfied, as no record is available with the information utility, the agreements are mere promises which cannot be termed as financial contract and are not supported by admissible financial statements as evidence of the debt....