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TaxTMI 
TaxTMI 
TaxTMI 
2020 (5) TMI 276
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....(India) P. Ltd."-("corporate debtor"). The Adjudicating Authority (National Company Law Tribunal), Division Bench, Chennai, by impugned order dated December 19, 2018 rejected the application on the ground that it is barred by limitation and no financial debt is in existence. 2. Learned counsel appearing on behalf of the appellants while referring to the records has taken plea that the appellants are the "financial creditors" and debt is not barred by limitation. 3. Reliance has been placed on "correlation statement" made by the respondent-("corporate debtor"), which are as follows : "Correlation statement I. Statement of payments made by Radha Exports (proprietary concern) to the appellants-(Sl. Nos. 1 to 5 of annexure R/4 at page 11 ....
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....nt has been paid then there was no occasion for the respondent to take plea before the Adjudicating Authority that the amount was not payable in law, it being barred by limitation. 5. In the case of Innoventive Industries Ltd. v. ICICI Bank [2017] 205 Comp Cas 57 (SC) ; [2018] 1 SCC 407, the hon'ble Supreme Court while dealing with the provisions of section 7 observed and held as follows (page 87 of 205 Comp Cas) : "The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even pa....
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....and manner as 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 c....
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.... always open to the "corporate debtor" to suggest that the amount is not payable in law. 8. From the records, it appears that the matter relating to the Income-tax pending with the office of the Assistant Commissioner of the Income-tax, Chennai, whereby letter dated June 26, 2012, the Assistant Commissioner of Income-tax referred to the balance-sheet of "M/s. Radha Exports (India) P. Ltd." showing therein the name of Smt. Shobha Jayaram (the second appellant) and stated that on verification it found that a sum of Rs. 90,00,000 for loan advanced by Smt. Shobha Jayaram to the proprietary concern "M/s. Radha Exports" transferred as share application money after the incorporation of "M/s. Radha Exports (India) P. Ltd.". 9. After the remand re....
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....m of the appellants is not barred by limitation as at appropriate stage, the appellants moved application under section 433(e) of the Companies Act, 2013 for winding up of the company. In view of the amendments made, the "I and B Code" was given effect and section 433 having been deleted from the Companies Act, 2013, the appellants had no other option but to move an application under the provisions of the "I and B Code". 13. The next question for consideration is whether the appellants can claim to be the "financial creditors". Admittedly, the amount as shown by the Assistant Commissioner of Income-tax amounting to Rs. 90,00,000 shows that the amount is disbursed by the second appellant-Smt. Shoba Jayaram for consideration of time value of....