TaxTMI 
TaxTMI 
2019 (4) TMI 1845
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....was incorporated on 02.02.1996. The identification number of the Corporate Debtor is U74239DL1996PTC076006 and its registered office is situated at Plot No. 13, Road No. 35F/F, West Punjabi Bagh, Near New Delhi, West Delhi-110026. 3. The petitioner has proposed the name of Resolution Professional, Shri Madan Lal Aggarwal, #3004, SF, SBI Officers Housing Society, Sector 49D, Chandigarh- 160047, email id [email protected]. He has registration No. IBBI/IPA002/1P-N00497 / 2017-18/11553. A written communication dated 11.06.2018 made by Mr. Aggarwal in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has also been placed on record (Annexure-2). There is a declaration made by him that no disciplinary proceedings are pending against him in Insolvency and Bankruptcy Board of India or ICSI Insolvency Professional Agency. In addition, further necessary disclosures have been made by Mr. Aggarwal, as per the requirement of the IBBI Regulations. Accordingly, he satisfies the requirement of Section 7 (3) (b) of the Code. 4. Facts which are material to the controversy raised may first be noticed. The pleaded case of the Financial C....
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....vant portion of the said memorandum of understanding and the same read as under:- "...............As a pre condition to the acquisition, Piramal requires Medinn to acquire an infringing trademark called "NPD Endura Mass". In order to pay for this consideration towards acquisition of NPD Endura Mass, Medinn is falling short of the liquid funds required and requires some external funding support. Therefore, Medinn through its directors has requested Mahesh to lend them a sum of Rs. 1.7 cr. (one crore sevent lakhs only). Mahesh has agreed to lend to Medinn a sum of INR 1.7 cr. (one crore sevent lakh only) for a very short term. These funds are agreed by Medinn to be returned at the earliest as soon as 1) either the deal is consummated with Piramal or 2) Medinn will generate other funds to return the money to Mahesh within 3 months. ....................................................It is further agreed that in case Mahesh requests for other executable securities the company or its promoters would provide satisfactory executable securities without delay. .................................... .......................................
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....relating to computation of amount of default and dates of default has also been placed on record (Annexure I-C). 10. The precise case of the Petitioner is that the total amount in default and due to the financial creditor by the corporate debtor as on 01.06.2018 is Rs. 11. Learned counsel for the Corporate Debtor has opposed the admission of the petition by asserting that:- (i) The Respondent is the manufacturer of farnous brand "Endura Mass" since 01.02.2001. In August 2009 fact came in his knowledge that there is one product with deceptively similar trade mark "NPD Endura Mass" being sold in the market and Mr. Sanjay Kumar Chetwani is a key person behind this mischief. The Respondent had filed a police complaint to that effect against Mr. Sanjay Kumar Chetwani including two others which was registered as Crime No. 274 dated 23.09.2009 (Annexure R-3) u/ s 420 of IPC r/ w Sections 102, 103 & 104 of Trade Marks Act, 1999. (ii) The Respondent never knew for so many years that said Mr. Chetwani got his trade mark NPD Endura Mass registered and it could be known only when Mr. Chetwani filed a Civil Suit against the Respondent in May, 2017. In the said suit relie....
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....the Respondent and letter dated 06.12.2017 written by the petitioner to Piramal have been placed on record (Annexure R-4 & R-5) highlighting that all had written in pursuance to the aforesaid deal as well as for the purpose to win deep confidence of the Respondent. (v) As per the petitioner both aforesaid persons demanded Rs. 50 crores for the purpose to finalize the deal with the Respondent of his product 'NPD Endura Mass'. During protracted mediation, the petitioner stated that Mr. Chetwani has agreed to finalize said deal at Rs. 4.40 crores. After winning deep confidence the petitioner advised the Respondent to pay Rs. 10 lacs to the petitioner as a token money has to be paid to Mr. Chetwani. The said amount of Rs. 10 lacs paid by the Respondent to the petitioner through online mode. Further a cheque bearing No. 004177 for remaining amount of Rs. 4.30 crores was given by the Respondent to the petitioner to complete the aforesaid deal. (vi) When date of signing of assignment deed was getting nearer the petitioner stated that both abovesaid persons are not accepting the cheque and asked the petitioner to arrange the money by way of demand drafts. As the R....
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.... Financial Creditor reiterating the submissions made in the petition and controverting the assertions made in the reply. In para 1 of the rejoinder it has been submitted that criminal complaint dated 25.05.2018 filed by the Respondent against the petitioner is clearly a counterblast to the notice issued under Section 138 of Negotiable Instrument Act by the petitioner on 28.04.2018. It has then submitted that the petitioner, for the conclusion of the deal with Piramal granted a short-term loan, amounting to Rs. 1.70 crores as per memorandum of understanding dated 16.01.2018 read with Agreement dated 06.12.2016 to the Respondent. The petitioner also stated that he has no relation with Mr. Chetwani whatsoever, and was only coordinating with him on behalf of the Respondent to help the deal along. The petitioner is indulged into consultancy business and on the request of the Respondent, had finalized a deal with Mr. Chetwani for purchase of its trade mark wherein the role of the petitioner was middleman and not otherwise. The Respondent after due negotiation agreed upon a price to be paid to Mr. Chetwani, filed a consent terms (Annexure 1) in the Court of District and Session Judge, Jai....
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.... Section 5(8) of the Insolvency & Bankruptcy Code. 15. We have heard Ld. Counsel for the parties at the considerable length. We confronted Ld. Counsel for the petitioner with a query as to how the petitioner would be covered by the expression 'Financial Creditor' and the expression 'Financial Debt' within the meaning of the term used in Section 7 read with Section 5 (7) & (8) of the Insolvency & Bankruptcy Code. Ld. Counsel for the petitioner lowered his eyes and was not able to post any satisfactory answer. 16. In order to find out as to whether the petitioner answers the description of "Financial Creditor" in terms of the aforesaid provision of the Act, it would be profitable to read the provisions of Sections 5 (7) & (8) and Section 7 of IBC which are set out below: 5. Definitions: In this Part, unless the context otherwise requires- 7. "financial creditor" means any person to whom a financial debt is owed and includes a person to whom such debts has been legally assigned or transferred to; (8) "financial debt" means a debt alongwith interest, if any, which is disbursed against the consideration for the time value of money and inc....
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.... (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any other information as may be specified by the Board From a bare perusal of Section 7 of the IBC, it is patent that the insolvency process can be triggered at the instance of a "Financial Creditor" individually or jointly against a corporate debtor when default has occurred. The first question arises for consideration is as to who is a 'Financial Creditor'. In order to ascertain the meaning of that expression we have to examine its definition as provided by Section 5 which is applicable to Part Il. We have already extracted the provisions of Sections 5 (7) and 5 (8) of the IBC which are relevant to the issue raised. Section 5 (7) of IBC defines the expression "Financial Creditor" and Section 5 (8) of IBC defines the expression "Financial Debt" which has been used in Section 5(7) of IBC. 17. A perusal of definition of expression 'Financial Creditor' would show that it refers to a person to whom a Financial debt is owed and includes even a person to whom such debt has been legally assigned or transferred to. In order to understand the expr....