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2020 (9) TMI 998
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.... the Petitioner), filed this Petition, seeking to set in motion the Corporate Insolvency Resolution Process (CIRP) against Modlite Holdings Private Limited alleging that Corporate Debtor committed default to the extent of Rs. 47,16,667/- as provided under Section 7 of the Insolvency & Bankruptcy Code (hereinafter called "Code") read with Rule 4 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 2. Earlier, one more similar Petition, i.e., CP (IB) 1414/MB/2017, has been filed before this Bench by the same Petitioner(s) against another family owned Company. It is to be noted that the facts, documents annexed and submissions made by both the parties are almost same/similar in both these Petitions. Contentions....
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....ition. 6. The Counsel for the Petitioner submits that the Corporate Debtor has failed and neglected to repay the said loan amount to the Petitioner and on the contrary, the claim of the Petitioner is disputed by the Corporate Debtor with malafide intentions and ulterior motives. Contentions made by the Corporate Debtor: 7. The Counsel for the Corporate Debtor submits that the Corporate Debtor is a family owned Company comprising of 3 brothers holding 1/3 shares of the Company themselves along with their immediate siblings. It is stated that the Petitioner and Mr. Sunil Kewalramani (POA holder) are having father-son relationship. Control of affairs and management of the Company is lying with the Petitioner group since long but now, rest o....
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....e Debtor further submits that Form No. 1 and the demand notice were never issued to the Corporate Debtor. Instead, Form No. 1 and demand notice were issued, received and replied by the Petitioner and his POA holder among themselves only. So, effectively demand notice served and replied by the Petitioner and his son. The Form No. 1 and the Demand Notice show that there was no agreed date of repayment and therefore, there is no amount due and payable as per section 5(8) of the I& B Code, 2016. Hence, when the amount is not due, there is no case of default. 11. It is then submitted that amount brought in by promoters was as Quasi Capital but not as debt under I & B Code, 2016. The Counsel for the Corporate Debtor says that it is evident from ....
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....te Debtor submitted that the Petitioner has initiated fraudulent and malicious proceedings against the Corporate Debtor to save themselves from the responsibility of various allegations which was subject matter of Board meeting dated 26.06.2017 where POA holder of the Petitioner was asked for explanation and documents relating to misutilisation of fund, excessive cash in hand, siphoning off money in the name of investments, salary, commission and forge creditors and maintaining forge documents relating to statutory records of the Company. Even, the Corporate Debtor has filed Police Complaint against the POA holder of the Petitioner and Police has registered the FIR against him, who was also behind the bars for 4-5 days in this matter. 14. ....
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....ch noted that Corporate Debtor is a company owned by 3 brothers with the 33% shareholding each. Mr. Parmanand Kewalramani ("the Petitioner") is the father of Mr. Sunil Parmanand Kewalramani ("POA holder of the Petitioner"). 17. This Petition has been filed by the shareholder in the Company under Section 7 of the Code. This Bench noted a very queer aspect in the demand notice in respect of the outstanding loan which was served on 21.08.2017 by the Petitioner to Mr. Sunil Kewalramani (son and POA holder of the Petitioner) among themselves. The Petitioner sends the Demand Notice which is replied by Mr. Sunil Kewalramani (son and POA holder of the Petitioner) on behalf of the Corporate Debtor Company. Here, the Bench notes that both of them ar....
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....d notice". 20. The next question before this Bench is whether the amount being mentioned by the Petitioner in claim of Rs. 47,16,667/- can qualify as a financial debt or not? The definition of debt has been given under Section 3(11) of the IBC, which reads as below: "3 (11): "debt" means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt;" Similarly, financial debt has been defined under Section 5(8) of the code, which reads as: "5 (8): "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes- ................" 21. In this case, the Bench takes note of the fact that the....