2019 (12) TMI 1139

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....acility to the Corporate Debtor during 2010-12 against the payment of Interest @ 6% per annum i.e amount of Rs. 10,00,000/-, Rs. 6,00,000/-, Rs. 4,00,000/- and Rs. 5,00,000/- (Total of Rs. 25,00,000/-) in the different dates i.e 04.11.2010, 19.11.2010, 15.02.2011, 08.11.2012, respectively. (A copy of the Bank Passbook of the Applicant for payment made to Corporate Debtor is annexed as Annexure A/3). (ii) That the Initially interest component was payable @ 6% per annum but subsequently since 2012, due to mutual agreement in-between the parties, interest of @ 9% was agreed to be paid. The interest was paid on monthly basis and TDS @ 10% was being deducted on the interest paid by the Corporate Debtor. (iii) Applicant stated that Corporate Debtor paid interest for the month of October, 2018, on 12.10.2018 and also deducted T.D.S on the aforesaid amount, thereafter, the Corporate Debtor has failed to pay interest and has defaulted in paying the interest, which is legitimately due to the Applicant/ Financial Creditor. (Copy of latest TDS Certificate are annexed as Annexure A/4). (iv) Applicant stated that despite several notices and reminders the Corporate Debt....

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....inancial creditor. 8. It is further submitted that the corporate debtor had paid the interest for the month of October, 2018 on 12.10.2018 and had also deducted TDS on the aforesaid amount, thereafter, corporate debtor has failed to pay the interest and have defaulted in paying the interest. He further submitted that there is no need of agreement to give a debt and in this regard he placed reliance upon the decision of NCLT, Mumbai Bench decided on 25.02.2019. 9. In the light of the that submission, I have gone through the averment made in the petition filed on behalf of applicant/ financial creditor and on careful consideration of the same, I find, in column No.2 of Part IV, the applicant mentioned the date of default is on 31.07.2019 and the amount on which the applicant claimed as per the date of default is of Rs. 27,23,125.00/- (Rupees Twenty Seven Lakhs Twenty Three Thousand One Hundred and Twenty Five Only). Part V, which relates to the particular of financial debt (Documents, Records and Evidence of Default) from serial No.l to 7, the applicant mentioned this fact that 'Not Applicable' and at serial No.8, which relates to the list of other documents, he mention....

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....t the applicant has not produced any record of default with the information utility as required in column No.3 Part V. I further find, that the applicant has also not attached the latest and complete copy of the financial contract reflecting all amendments and waivers to date, even the first agreement of copy to show that the applicant was entered into an agreement with the corporate debtor for providing the financial assistance subject to payment of interest, is not attached. Of course, the applicant has filed his passbook, which would be evident from serial No.8 of Part V to show that the corporate debtor has deposited some amount in the account of applicant/ financial creditor, 14. At this juncture, I have gone through the document, which has been mentioned at serial No.8 Part V as Annexure- A/9 and on perusal of the same, I find, this is not the document issued by the concerned Bank, because it does not bear the signatures of the authority, who has issued the said document, of course, it has been attested by the notary, but in my opinion, notary is required to attest the document, which is the copy made from the original issued by the competent authority. Here the applicant ....

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...., I am unable to place reliance upon this document. 17. At this juncture, I would like to refer the decision, upon which the applicant has placed reliance, NCLT, Mumbai Bench, in the matter of Anchor Leasing (P.) Ltd. v. Euro Ceramics Ltd.[CP. No. 66/IBC/NCLT/MB/MAH/2018, dated 25-2-2019], I have gone through the decision and on careful consideration of the same, I find, the facts of the case of that decision is different from the facts of the case in hand, because here in the case in band, there is no acknowledgement of debt of the Corporate Debtor and the document, which the applicant placed reliance has not been referred at serial No.7, which relates to the bankers book rather it is referred at serial No.8 and I have explained the reasons for not placing reliance upon that document, therefore, the decision upon which the applicant has placed reliance, is not applicable, under the facts and circumstances of the case in hand. For the reasons discussed above, in my opinion, applicant has failed to establish an amount i.e. Rs. 25,00,000/- claimed by the applicant comes under the definition of financial debt and the applicant is financial creditor. 18. At this stage, I would al....