2018 (8) TMI 1959

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....n and Ms Sneha Pradeep, Advocates, Ms Deepa V Ramani JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J The application under Section 7 of the Insolvency & Bankruptcy Code, 2016 (I&B Code for short) was filed by the -Stanbic Bank Ghana Limited (financial creditor) for initiation of corporate resolution process against 'M/s Rajkumar Impex Pvt Ltd' (Corporate Debtor) having admitted by the Adjudicating Authority (National Company Law Tribunal), Chennai Bench, Chennai by impugned order dated 27.4.2018. The appellant, a shareholder of Corporate Debtor filed this appeal on following grounds:- (i) The 1st respondent do not come within the meaning of 'financial creditor' as defined under Section 5(7) r/w Section 5(8) of the I&B Code; and ....

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....ncy Resolution Process is illegal and void ab initio. 5. It was further submitted that the document relied upon by 1st Respondent is a 'foreign decree' of the High Court of Justice, Queens Bench Division Commercial Court which is an ex-parte decree. The said decree can not be treated to be a record of default. It is only a declaration entitling the applicant to a certain sum of money. 6. However, we are not inclined to accept the aforesaid submission, as a record of decree, is a proof of 'debt' and the record of default is required to be enclosed separately to suggest that no payment has been made in terms of decree. 7. In Innoventive Industries (Supra) the Hon'ble Supreme Court held as follows: "28. When it comes to a fin....

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....efault has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the c....

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.... 12. The decree passed by High Court of Justice, Queens Bench Division, Commercial Court of England, can be challenged only before the Court of Competent jurisdiction. The same cannot be assailed before the Adjudicating Authority, till its existence is denied. 13. Admittedly 'M/s Rajkumar Impex Ghana Ltd', a subsidiary of the Corporate Debtor, was granted medium term loan by 1st Respondent. It is also not in dispute that 'M/s Rajkumar Impex Pvt Ltd' (Corporate Debtor) which is the holding company of 'M/s Rajkumar Impex Ghana Ltd' has executed a guarantee in favour of the 'Stanbic Bank Ghana Ltd' (1st Respondent). The guarantee given by the Corporate debtor, is on record. The decree passed by the High Court is an evidence in support o....