TaxTMI 
TaxTMI 
2020 (10) TMI 551
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....or initiation of CIRP against the Corporate Debtor. Hence, these petitions are being dealt with together for the purpose of its adjudication as per merits and in accordance with the Law are being dispose of by this "Common Order." 2. The fact in brief which arised for consideration and necessary for disposal of these petitions are stated herein under: (A) C.P.(IB) No. 35 of 2018 (i) The present I.B. Petition is preferred by the Financial-Creditor Mr. Krashin V. Thummar under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a "Code"), seeking initiation of Corporate-Insolvency-Resolution-Process ("CIRP" in Short) in respect of the Corporate-Debtor-Company namely, M/s. Cosmos Technocast Pvt. Ltd. The Petitioner/Financial-Creditor, Mr. Krashin V. Thummar is an individual Financial Creditor. The Petitioner/Financial-Creditor is having its registered address at: "Kaustubh", Plot No. 66/2, Patel Colony -2, Gundala Road, Gondal - 360 311, India. (ii) It is stated that the Respondent/Corporate-Debtor Company, namely M/s. Cosmos Technocast Pvt. Ltd. is a company incorporated under the Companies Act, 1956 on 08.12.2006 with the ....
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.... No. 008788 dated 17.02.2017 for Rs. 75,206/- as the same was unacceptable and against the understanding between the parties since the period of deposit with the Corporate-Debtor as also rate of interest were disputed. In order to support its claim, the Financial Creditor has annexed copies of cheques issued by the Corporate-Debtor along with the present Petition. (ix) Further, the Financial-Creditor has shown a chart of rate of interest calculated for the amount of Rs. 4,00,000/- at 24% per annum, from the period of giving loan/deposit to the corporate debtor in the present petition. Thus calculating to Rs. 23,03,321/-as a payable amount. (x) Thus, the Petitioner/Financial-Creditor has stated that the said Corporate-Debtor has clearly defaulted in the repayment of the amount of Rs. 23,03,321/- and thus, committed a default. (B) C.P. (IB) No. 36 of 2018 (i) The present I.B. Petition is preferred by the Financial-Creditor Mr. Popatbhai P. Thummar under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a "Code"), seeking initiation of Corporate-Insolvency-Resolution-Process ("CIRP" in Short) in respect of the Corpor....
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....laimed to be an unsecured loan. The Corporate Debtor had failed in repayment of such deposited money, i.e. Rs. 50,000=00 along with interest of 2%. (vii) It is averred that the financial creditor was compelled to serve legal notice(s) to the Corporate Debtor. Thus, the notices were served on 20.07.2017 and 11.10.2017 by the Petitioner/Financial Creditor. The same are annexed as Annexures E & F to the present petition. (viii) It is stated that the Corporate Debtor, pursuant to the notices issued by the Petitioner had issued a cheque of Bank of Baroda having No. 008787 dated 17.12.2017 for an amount of Rs. 86,473=00 (Rupees Eighty-Six Thousand Four Hundred Seventy-Three only) to the Petitioner against the repayment of the aforesaid amount held as deposit to the Petitioner. It is stated that the financial creditor did not encash the cheque as the amount in the cheque was unacceptable to the Petitioner/Financial Creditor, as it was not as per the terms they entered into. (ix) Thus, it reflects that there was some pre-existing dispute regarding rate at which the repayment was calculated. The petitioner has also enclosed a copy of the said cheque with the prese....
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....a.), the deposited amount of Rs. 50,000=00 is claimed to come to Rs. 4,81,288=00 (Rupees Four Lakh Eighty-One Thousand Two Hundred Eighty-Eight only), which was admittedly awarded to the another deposit holder as per the e-mail of the Corporate Debtor dated 16.10.2011. A copy of such email is enclosed as Annexure - J to the present petition. (C) C.P.(IB) No. 37 of 2018 (i) The present I.B. Petition is preferred by the Financial-Creditor Mr. J. M. Kathrotiya, under Section 7 of the Insolvency and Bankruptcy Code, 2016 (herein after referred to as a "Code"), seeking initiation of Corporate-Insolvency-Resolution-Process ("CIRP" in Short) in respect of the Corporate-Debtor-Company namely, M/s. Cosmos Technocast Pvt. Ltd. The Petitioner/Financial-Creditor, Mr. J. M. Kathrotiya is an individual Financial Creditor. The Petitioner/Financial-Creditor is having its registered address at: "Kaustubh", Plot No. 66/2, Patel Colony -2, Gundala Road, Gondal - 360311, India. (ii) It is stated that the Respondent/Corporate-Debtor Company, namely M/s. Cosmos Technocast Pvt. Ltd. is a company incorporated under the Companies Act, 1956 on 08.12.2006 with the CIN: U27105GJ2006....
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.... Annexures E & F to the present petition. (viii) It is stated that the Corporate Debtor, pursuant to the notices issued, the Petitioner had issued a cheque of Bank of Baroda having No. 008786 dated 17.12.2017 for an amount of Rs. 4,32,000=00 (Rupees Four Lakh Thirty-Two Thousand only) to the Petitioner against the repayment of the aforesaid amount held as deposit to the Petitioner. It is stated that the financial creditor did not encash the cheque as the amount in the cheque was unacceptable to the Petitioner/Financial Creditor, as it was not as per the terms they entered into. (ix) Thus, it reflects that there was some pre-existing dispute regarding rate at which the repayment was calculated. The petitioner has also enclosed a copy of the said cheque with the present petition. (x) It is averred by the Petitioner that the Corporate Debtor issued a legal notice dated 12.08.2017, through its Advocate/Counsel, in reply to the legal notice served by the Petitioner dated 20.07.2017 by denying inter-alia that the deposit amounts held with the Respondent Company are long term borrowings from the promoters. It is stated that the Petitioner was neither a promoter ....
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....Kathrotiya 14.05.10 to 14.05.11 200000 2.00% 4000 48000 14.05.11 to 14.05.12 248000 2.00% 4960 59520 14.05.12 to 14.05.13 307520 2.00% 6150 73805 14.05.13 to 14.05.14 381325 2.00% 7626 91518 14.05.14 to 14.05.15 472843 2.00% 9457 113482 14.05.15 to 14.05.16 586325 2.00% 11727 140718 14.05.16 to 14.05.17 727043 2.00% 14541 174490 14.05.17 to 14.07.17 901533 2.00% 18031 36061 B 901533 A+B 13,57,038 (xv) It is stated that the interest calculation with a 2% interest per month (or 24% p.a.), the deposited amount of Rs. 2,50,000=00 is claimed to come to Rs. 13,57,038=00 (Rupees Thirteen Lakhs Fifty-Seven Thousand Thirty-Eight only), which was admittedly awarded to the another deposit holder. 3. As per the material available on record, the Corporate Debtor has filed separa....
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....erred by the Corporate Debtor that the Respondent/Corporate-Debtor is paying an interest @ 12% per annum to all the unsecured creditors including the Petitioner and in support of the same, it has annexed with a copy of the ledger account of the Petitioner as mentioned in Respondent Company evidencing the payment/accrual of interest amount to the Petitioner @ 12% per annum (i.e. 1% per month) along with the filed reply as Annexure-3. The same is also evident from the Income Tax Returns as filed by the Corporate-Debtor where Corporate-Debtor is regularly depositing the tax deducted on interest under Section 194A of the Income Tax Act, 1961 on interest pay outs. 10. It is further contended that the calculation sheet as prepared by the Petitioner for computing the default amount is also defective and wrong on the basis that the Petitioner is getting interest @ 12% whereas on the other hand he is wrongly claiming additional interest @ 24% PA. 11. It is further contended that there was no agreement that may have been executed between the Petitioner and the Respondent Company regarding payment of interest on the unsecured loan. 12. It is contended that prior to year 2017 (issuanc....
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.... fact now the legislature in its wisdom has introduced via Ordinance dated 06.06.2018: Section 238A of the I & B Code, 2016 to this effect, which is reproduced herewith for ready reference:- "238A. The provisions of the Limitation Act, 1963 shall, as far as may be apply to proceedings or appeals before the Adjudicating Authority or the NCLAT, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal as the case may be." 17. The purpose of the amendment can be traced from the Report of the Insolvency Law Committee (March 2018) which specifically points out the necessity to apply The Limitation Act, 1963 in cases under the Code. Relevant Para of the report is reproduced herein below: "The purpose of the law of limitation is "to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or latches" 150. Though the Code is not a debt recovery law, the trigger being 'default in payment of debt' renders the exclusion of the law of limitation counter-intuitive. Second, it re-opens the right of claimants (pursuant to issuance of a public ....
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....by the Petitioner on 01.06.2017, by sending a notice. However, the present petition is filed in this bench on 09.01.2018 and on this ground also, the Limitation Act, 1963, does not permit the petition to be admitted. Reply of Respondent in CP(IB) No. 37 of 2018 22. In response to the present Petition, the Respondent/Corporate Debtor has filed its objection in this Bench on 02.08.2018 stating that the present application suffers from Suppression veri and suggestion falsi, as the petitioner has suppressed many material facts. 23. Stating such, the Respondent, by denying all the averments made by the petitioner has stated that, the Petitioner is holding total 30,000 equity shares, i.e. 3.00% of the total share equity of the company. Further, it is averred that the petitioner did not encash the cheque of Bank of Baroda having No. 008786 dated 17.12.2017 for an amount of Rs. 4,32,000=00 (Rupees Four Lakh Thirty-Two Thousand only) and also another cheque issued for Rs. 95,826=00 dated 15.01.2018 with a mala fide intention to harass the petitioner and to initiate frivolous proceedings under the I.B. Code. It is stated that the present corporate debtor company is a healthy and pro....
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....e. 24% per annum) which was deposited with Corporate Debtor. However, it is found that the petitioners have issued notice for repayment of money deposited (given as unsecured loan) only on 28.07.2017 and 11.10.2017 which is apparently beyond three (03) years of date of disbursement of loan or issuance of cheque. Hence, their such claim/debt is barred by the Limitation. It is now the well settled legal position by the Hon'ble Supreme Court in respect of the I.B. proceedings that the limitation prescribed for filing an I.B. Petition is three (03) years from the date when default has occurred ("B.K. Education Services Private Limited Vs. Parag Gupta and Associates - MANU/SC/1160/2018 : ", Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd. and Ors. decided on 18.09.2019). Hence, on such count also, the present I.B. Petition is not maintainable. That apart, the Corporate Debtor has placed reliance on a decision of Hon'ble NCLAT in the matter of Prowess International Pvt. Ltd. Vs. Parker Hannifin India Pvt. Ltd. in company appeal (AT) (Insol.) No. 89 of 2017, wherein, their Lordship has held that the object of the Code is not the recovery of dues. Whereas, th....
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....repeat that the object of the Code, at least insofar as operational creditors are concerned, is to put the insolvency process against a corporate debtor only in clear cases where a real dispute between the parties as to the debt owed does not exist. 30. By following the above stated judicial precedent, we are of the view that the present petitioners have filed these petition with some mala fide intention only to create pressure on the Corporate Debtor for recovery of its amount invested or unsecure loan given to the Corporate Debtor without having a formal and written contract and that is too with an exorbitant rate of interest of 24% per annum, which cannot be treated as fair and legally sustainable. Moreover, it appears that the present petition is result of some family dispute arose among them and merely to harass the Respondent/Corporate Debtor. The Corporate Debtor is showing a positive net-worth as per its last balance sheet, hence, it cannot be termed that the company is unable to pay its debts but there may be some dispute with regard to "oppression and mismanagement" in the company, which is not the subject matter of the present I.B. Petition. The parties are at a liber....