TaxTMI 
TaxTMI 
2017 (2) TMI 1466
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....igned by one Anil Chunilal Varma as authorised signatory of Kotak Resources on the basis of power of attorney dated 07.11.2017 executed by the proprietor of Kotak Resources in favour of Anil Chunilal Varma authorising him to file Insolvency Proceedings against Raninga Ispat Private Limited under the provisions of Insolvency and Bankruptcy Code. 3. It is the case of the petitioner that an amount of Rs. 1.00 crore have been, lent to the respondent through Navis Multitrade Private Limited. The terms of finance made by Navis Multitrade Private Limited and petitioner to the respondent are mentioned in agreement dated 05.09.2012. As per the terms of the agreement Navis Multitrade Private Limited and petitioner are entitled to commission of Rs. 0.50 per kg. of pig iron manufactured by the respondent and the payment has to be made on weekly basis. Respondent assured that there will be minimum guaranteed production of 80 tonnes per day. It is the case of the petitioner that the amount outstanding towards commission is Rs. 1,46,00,000/- per annum and for five years the said amount is aggregating to Rs. 7,30,00,000/-. The agreement envisages return of loan by respondent to Navis Multitrade....
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....Multitrade Private Limited on the dates mentioned in clause I of part IV of Form I. It is also the plea of the respondent that it has settled entire dues of Navis Multitrade Private Limited and filed ledger account of Navis Multitrade Private Limited maintained by respondent for the period between 01.04.2011 to 31.03.2014. It is stated that the ledger account disclose that respondent received Rs. 67.00 lacs from Navis Multitrade Private Limited whereas respondent paid Rs. 71.27 lacs and, therefore, respondent is entitled to recover Rs. 4.27 lacs from Navis Multitrade Private Limited. It is pleaded by respondent that Navis Multitrade Private Limited wrote a letter to respondent dated 03.07.2015 stating that henceforth all payments due to Navis Multitrade Private Limited be made to the petitioner. Respondent gave reply dated 11.07.2015 to Navis Multitrade Private Limited stating that entire amount of outstanding has already been paid by respondent and there is no outstanding, enclosing a copy of ledger account. Thereafter, no communication was received from Navis Multitrade Private Limited. 2 1/2 years laterthe present proceedings were initiated by the petitioner. It is pleaded that ....
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....ble since proprietary concern is an Individual and Individual is included in Section 3 (23) Of code. 8. Most important objection raised by the respondent is that the amount claimed is not financial debt within the meaning of Section 5 (8) of the Code. Financial debt is defined in Section 5 (8) which says that "financial debt" means a debt along with interest, if any, which is disbursed against the consideration for the time value of money. It did not stop there. It includes sub-clause (a) to (i) of clause 8 of Section 5. Sub-clause (a) of clause 8 of Section 5 includes money borrowed against payment of interest is financial debt, Section 5 (8) clause (f) is any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing is a financial debt. 9. In the instant case, a perusal of the Pledge Agreement dated 05.09.2012 show that petitioner and Navis Multitrade private Limited are the lenders and respondent is a borrower. There are clauses in the pledge agreement dated 05.09.2012 to pay interest as well as commission on the amount borrowed. The transaction covered by the agreement dated 05.09.2012 is comme....
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....itioner is not a financial creditor. As already said agreement refers the petitioner and Navis Multitrade Private Limited as lenders. Debt is financial debt. Therefore, petitioner is financial creditor. Apart from this there is Assignment Deed dated 25.10.2017 executed by Navis Multitrade Private Limited in favour of the petitioner. It is challenged by respondent on the ground that respondent is not a party to the said Assignment Deed. There is no provision in any law that debtor must be a party for the Assignment Deed. Therefore, on the ground respondent debtor is not a party to the Assignment Deed, it cannot be overlooked. 12. Another contention of the learned counsel for respondent Is that the Assignment Deed was entered into after name of Navis Multitrade Private Limited was struck of by Registrar of Companies. Answer to this is available in Section 250 of the Companies Act, 2013. "250. Where a company stands dissolved under section 248, it shall on and from the date mentioned in the notice under sub-section (5) of that section cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except....
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.... i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise". 18. In the case on hand it is held that petitioner is financial creditor. It is also held that the amount due to the petitioner from the respondent is financial debt. There is also occurrence of default in repayment of financial debt. The petition filed by the petitioner is complete in all respects. Hence this application is admitted. 19. In the case on hand petitioner has proposed the name of Mr. Dharmendra Dhelaria, having address at Ashman, 6, Kalpana Society, Navrangpura, Ahmedabad 380 009. 20. Adjudicating Authority hereby appoint Mr. Dharmendra Dhelaria, having address at 401, Ashman, 6, Kalpana Society, Navrangpura, Ahmedabad 380 009 as Interim Insolvency Resolution Professional having Registration No. IBBI/IPA001/1p-POQ251/2017-18/10480 u/s 13 of the Code. 21. The interim Insolvency Resolution Professional is hereby directed to cause a public announcement of the initiation of Corporat....