TaxTMI 
TaxTMI 
2020 (8) TMI 546
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....the order passed by the Adjudicating Authority/National Company Law Tribunal, Principal Bench, New Delhi, in C.P. No. IB-422(P.B.)/2018, dated 10th October 2019, whereby the Adjudicating Authority has admitted the Application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'I&B Code'), against the 'Corporate Debtor' M/s B.K. Educational Services Private Limited. The parties are represented by their status in the Company Petition for the sake of convenience. 2. Brief facts of the case are as follows: The Appellant contends that the Respondent No.1 has filed the present Insolvency Petition only to wriggle out of the repayment obligations to the Appellant under the Memorandum of Understanding dated 27th Januar....
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....inancial Institutions or by 30th June 2016. 3. In Reply filed by one Mr Mukesh Aggarwal, the Director of the Respondent-Corporate Debtor it contends that the amount claimed in default is not a 'financial debt' within the meaning of Section 5(8) of the Code. The Adjudicating Authority erred in treating the amount claimed by the Petitioner as a 'financial debt', within the meaning of the Code. The Adjudicating Authority has further observed that the Petitioner has also placed on record the bank statements which show that the transactions have been done by him in favour of GNIDA, on behalf of the Company, in terms of the Resolution passed by the Board of Directors in its meeting dated 01st September 2015. 4. There is other reliable evide....
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....dicating Authority has further failed to find that the Respondent No.1 had entered into a binding MoU dated 27th January 2016, whereunder the shares of the Respondent No.2 were transferred to the present shareholders as security for the repayment of Rs. 20.5 Crores by the Respondent No.1 to the current shareholders; the MoU is a conclusive record of all the repayment obligations interse the parties, the said Rs. 20.5 Crores is payable by the Respondent No.1 and no amounts are due and payable to the Respondent No.1; the Adjudicating Authority has failed to consider that the Respondent No.1 has preferred the present petition for evidence of repayment obligations under the MoU; the Respondent No.2 neither owes any amount to the Respondent No.1....
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.... Adjudicating Authority has admitted the petition. 8. The Appellant has assailed the impugned order passed by the Adjudicating Authority on the basis that the alleged debt does not fall under the definition of 'financial debt' as defined under Section 5(8)(f) of the Code. The Appellant has placed reliance on the order passed by this Appellate Tribunal passed in Company Appeal No. 38 of 2017 Dr B.V.S. Lakshmi Vs. Geometrix Laser Solutions Private Limited. 9. In the case mentioned above, the three Member's Bench of this Tribunal has noted that: "15........the amount as reflected in the earlier balance sheet of the company merely describes certain 'unsecured loan' being payable to the Appellant as on 31st March 2014. The respond....
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....ticed that the Appellant has failed to establish that there has been disbursement against consideration of time value and money. The amount, as reflected in the balance sheet of the Company merely describes certain 'unsecured loans' being payable to the Appellant whereas the Auditor certificate states that no amount is due and payable to the Appellants. In the circumstances, this Tribunal has rejected the contention of the Appellant and held that Appellant has failed to show that the amount has been raised by the Respondent under any other transaction, such as sale or purchase agreement, having the commercial effect of borrowing. 11. Thus, the above case law does not apply to the facts of the present case. In the instant case, the Respon....