TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 598
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....ugh liquidity to pay the claim of original applicant. Number of days this IA remain pending be excluded from the threshold limits to conclude the CIRP. b. Prayers i. R-2- Mukesh Desai's claim as Financial Creditor as admitted by the R-1 be cancelled. ii. On cancellation of claim of R-2 as Financial Creditor, COC constitution be declared as cancelled. iii. R-3 being original applicant be paid from the current account of the Company having enough balance. iv. No other creditor remains and CIRP commenced may be declared as stopped as there being no claim by creditors as R-3 only creditor is being paid and no grievance remains on their part. v. Cost may be imposed on R-1 IRP for doing such acts against the code in conspiracy with R-2. vi. R-1's action may be declared as suspicious and matter may please be referred to IBBI for necessary action. vii. For costs 3) The Applicant (Corporate Debtor of C.P. (I.B) No. 178/2018) submitted that IRP made paper publication as required in the IB Code. Subsequent to the advertisement, IRP convened first meeting on 16.09.2019, wherein, sole member, Mr. Mukesh Desai was constituted as COC as sole Financial Creditor. It is subm....
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....bmitted that there is a term loan of Rs. 4,41,82,071/- of Respondent No. 2 as per page No. 44 of the application annexed by the Applicant and in view of that the Respondent No. 2 has been admitted as Financial Creditor. The RP has also submitted that he has never raised any exaggerated expenses as alleged by the Applicant and he can justify as and when required to this Adjudicating Authority. 8) Also gone through the reply of Respondent No. 2 namely Mr. Mukesh Desai, who has submitted that he has financed M/s. Shilpraj Developers Pvt. Ltd. (Applicant) to the tune of Rs. 4,41,82,071/- in the year 2014. 9) In Affidavit in reply, Respondent No. 2 also submitted that he has entered into MOU in respect of a project, executed on 26.05.2014 amongst various parties as first part and himself as second part. 10) Gone through the reply, rejoinder and the document annexed therein by the parties. 11) On perusal of the record, it is found that Respondent No. 2 has entered into MOU on 26.05.2014 and 28.05.2015, wherein, the Respondent No. 2 is arrayed as party of the second part and in the said MOU, it is clearly mentioned that the parties of the second part become the partner of the 25% shar....
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..... The relevant portion of the para is quoted herein below: "Mukeshbhai was considered as Financial Creditor finally by the court. His claim needs to be updated a little with correction in interest calculations. " (sic) 17) It is a matter of record that as on 18.03.2020, no such order has been passed whereby Mr. Mukeshbhai Desai (Respondent No. 2) is declared/considered as Financial Creditor. 18) It is also a matter of record that in the 7th meeting of the COC held on 01.05.2020, the RP apprised in the meeting that a request has been received from the Operational Creditor for withdrawal of the Application. The said fact is reflected in the Item No-6 of the Minutes of Meeting dated 01.05.2020 page No. 46 of the rejoinder to reply filed by the Respondent- 1, which is quoted herein below: "The request on 24th March, 2020 has been received from M/s. Nuvoco Vistas Corporation Limited to withdraw application admitting CIRP under Section 12A of IBC. As application for withdrawing CIRP proceedings requires consent of 90% of Financial Creditor as per Section 12A of IBC, 2016 (which is reproduced here below), the same is placed before COC members for their consideration: Section 12A ....
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....n perusal of the record, it is found that the amount so paid by the Respondent does not have any time value of money or includes interest. For the sake of convenience, the definition of "Financial Debt" is reproduced hereunder: "Financial Debt means a debt alognwith interest, if any, which is disbursed against the consideration for the time value of money and includes: a. borrowed against the payment of interest; b. any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; c. any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; d. the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; e. receivables sold or discounted other than any receivables sold on non-recourse basis; f any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; g. any derivative transaction entered into in connection with pr....