TaxTMI 
TaxTMI 
2020 (7) TMI 121
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.... record that, Mr. Anuj Kumar Tiwari had approached this Tribunal with an application under section 9, of the IBC, 2016. Vide judgment dated 19-3-2019, in IB-1489/ND/2019, this Tribunal had admitted the said application and appointed Mr. Sanjay Sahani as the Interim Resolution Professional (IRP). 4. Further the records reveal that, after constitution of Committee of Creditors (CoC), Mr. Debasish Nanda was appointed as Resolution Professional (RP), at the CoC meeting held on 11-4-2019 and this appointment was confirmed by this Tribunal, vide order dated 8-5-2019, in CA 148/2019. 5. The RP at the 2nd CoC meeting, expressed his inability/willingness to act as RP in the present state of working condition and CoC decided to proceed for replacement of RP by way of making application to NCLT, the sole member of CoC (present applicant) through mail dated 22-6-2019 requested RP to call for a meeting of CoC, for the purpose of replacement of RP and approval of the same by NCLT, in its reply the RP sent a mail to the applicant for convening the 3rdCoC meeting on 6-7-2019 and after 45 minutes sent a mail to reschedule the meeting on 3-7-2019 6. The Applicant in the present application states....
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.... within the definition of an Operational Creditor, the debt owed to such a person must fall within the definition of an operational debt as defined under section 5(21) of the IBC, as follows- "a claim in respect of the provisions of goods or services including employment or a debt in respect of the repayment of dues arising under any law for the time being in force and payable to the Central Government, any state Government or any local authority." As per the definition, M/s. Versatile Commotrade Private Limited has neither supplied any goods nor any services to the Corporate Debtor and hence does not fall in the category of Operational Creditors. 11. In its reply M/s. Versatile Commotrade Private Limited, states that before making submissions on the allegations/plea raised by the Operational Creditor in captioned application, it would be appropriate to reproduce relevant portion of Section 5(8) of IBC, 2016 below; "5(8): "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for time value of money and includes... (f) Any amount raised under any other transaction, including, any forward sale or purchase agreement, having the....
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....he kind of financing arrangement by allottees to real estate developers when they pay installments at various stages of construction, so that they themselves then fund the project either partially or completely. 13. Thus, as it is observed in the above reproduced paras of the ruling in Pioneer Urban Vs. U.O.I of the Hon'ble Supreme Court, it is evident that Section 5(8)(f) is residuary provisions which is "Catch all" in nature and it covers any transaction under which any amount is paid for a particular purpose and it is not required that to cover such amount within the definition of financial debt, the money given should be as loan transaction. It is also evident that money given as advance to be used for the purpose of profits and to give back the equivalent of money given, would take the character of financial debt. 14. Now examination of facts of the present case as detailed below viz-a-viz above position of law, would make it clear that sale transaction between the corporate debtor and M/s. Versatile Commotrade Private Limited was entered by the corporate debtor to make huge profit and money paid by the M/s. Versatile Commotrade Private Limited to the Corporate Debtor wa....
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....paragraph (f) and that the precise scope of paragraph (f) is uncertain. Equally, paragraph (f) seems to be a "catch all" provision which is really residuary in nature, and which would subsume within it transactions which do not, in fact, fall under any of the other sub-clauses of Section 5(8). 65. and now to the precise language of section 5(8)(f). first and foremost, the sub-clause does not appear to be a residuary provision which is "catch-all" in nature. This is clear from the words "any amount" and "any other transaction" which means that amounts that are "raised" under "transactions" not covered by any other clauses, would amount to a financial debt if they had the commercial effect of borrowing. The expression "transaction" is defined by Section 3(33) of the Code as follows: (33) "transaction" includes an agreement or arrangement in writing for the transfer of assets, or funds, goods or services, from or to the corporate debtor; As correctly argued by the learned Additional Solicitor General, the expression "any other transaction" would include an arrangement in writing for the transfer of funds to the corporate debtor and would thus clearly include the kind of financin....
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....atile Commotrade has a right to claim the advances and therefore, shall within the definition of Financial Creditor. Also, liquidated damages after being proven can be deducted. This bench in deciding the present CA, places its reliance of the decision of Hon'ble Apex Court in the case of Pioneer Land & Infrastructure Ltd. v. U.O.I., had analyzed in detail the scope and effect of Section 5 (8) as well as Section 5 (8) (f) of IBC and relevant portion of the said judgement which directly covers the issue in hand is quoted as under:- "70. Thus, in order to be a "debt" there ought to be a liability or obligation in respect of a "claim" which is due from any person. "claim" then means either a right to payment or a right to payment arising out of breach of contract, and this claim can be made whether or not such right to payment is reduced to judgement. Then comes "default", which in turn refers to non-payment of debt when whole or any part of the debt has become due and payable and is not paid by the Corporate Debtor..." "72. The definition of "financial debt" in Section 5(8) then goes on to state that a "debt" must be "disbursed" against consideration for time value of mone....