TaxTMI 
TaxTMI 
TaxTMI 
2022 (11) TMI 159
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.... ground that a decree holder does not come within the definition of 'Financial Creditor'. The Adjudicating Authority has further held that in view of the facts and circumstances of the instant case, the debt in question which is included in the section 7 application does not come under the purview of 'financial debt'. 2. The Appellant's case is that upon a request made by the Respondent, he disbursed an interest-bearing loan for a sum of Rs.2,50,00,000 (Rupees Two crores Fifty Lakhs only) for a period of two months carrying interest @ 12.75% p.a. payable on half yearly basis vide a loan agreement dated 24.2.2010 to the Respondent. He has added that Respondent again approached the Appellant requesting for further financial assistance to meet his working capital requirements, and consequently another loan agreement dated 31.3.2010 was executed between the Appellant and Respondent by which the Respondent borrowed another sum of Rs. 2,00,00,000 (Rs. Two Crores only) from the Appellant for a period of 15 days along with an interest @ 3% p.m. payable on half yearly basis. 3. The Appellant has further stated that he submitted cheques, meant for repayment issued at the time of execution ....
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....pectively, with both loans carrying an interest and a time period for repayment, and therefore, he is a 'financial creditor' under the IBC. He has further claimed that the Impugned Order does not consider the decree passed by the Hon'ble Delhi High Court as a result of default of repayment of loan amounts, which provides a fresh cause of action for the financial debt owed by the Respondent to the Appellant. 5. We heard the arguments of Learned Counsels for both the parties and perused the record. 6. The Learned Sr. Counsel for Appellant has referred to the two loan agreements, namely, the first one dated 24.2.2010, which is for an amount of Rs.2,50,00,000 (Rupees Two Crores and Fifty Lakhs only) carrying an interest @ 12.5% p.a. payable on half yearly basis for a period of 2 months and in the case of delay or default in payment of either principal or interest or in part thereof, the borrower shall be liable to pay a penal interest @ 10% per month over and above the interest mentioned in loan agreement, and the second loan agreement dated 31.3.2010 for an amount of Rs.2,00,00,000 (Rupees Two Crores only) for a period of 15 days carrying an interest rate of 3% p.m. payable on half ....
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....f Rs.2,50,00,000 for a period of two months vide loan agreement dated 24.2.2010 and another sum of Rs.2,00,00,000 for a period of 15 days vide loan agreement executed on 31.3.2010 does not have interest component", whereas the fact is that both the loan agreements are interest bearing loans as is clear from clause 2 of both the loan agreement dated 24.2.2010 loan agreement dated 31.3.2010 respectively. 9. In support of his contentions, the Learned Senior Counsel for Appellant has again referred to the judgment of Hon'ble Supreme Court in the matter of Dena Bank (now Bank of Baroda) (supra) wherein in paragraph 141, the Hon'ble Apex Court has very clearly held that judgment/or decree for money in favour of financial creditor passed by the DRT or any tribunal or court would give rise to a fresh cause of action for the financial creditor, to initiate proceedings under section 7 of the IBC for initiation of CIRP within 3 years from the date of such judgment and/or decree. He has also referred to Hon'ble Apex Court's judgment in the matter of Kotak Mahindra Bank Limited vs. A. Balakrishnan & Anr. (2022 SCC OnLine SC 706), wherein it is held that a liability in respect of claim arising ....
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....ave commercial effect of borrowing to bring the alleged loan advances within the ambit of definition of financial debt." 12. Further, in para 14 of the Impugned Order, the Adjudicating Authority again observes as hereunder: - "in the case before us, the Appellant has not disbursed any debt against the consideration for the time value to the corporate debtor, consequently the corporate debtor does not own any 'financial debt' to the Applicant and further goes on to say that the transactions in question do not fall within the brackets of 'financial debt' only for the reason that the Hon'ble High Court of Delhi in CS(OS) 66 of 2016 preferred by the Applicant vide judgment dated 11.1.2018 decreed in favour of the Applicant a sum of Rs.4,38,00,617/- along with interest @ 24% p.a. from the corporate debtor". 13. Thus, it is clear that the Adjudicating Authority has not considered the amount advanced by the Appellant to the Respondent as financial debt particularly because in its opinion the advanced amounts do not involve a time value of money. 14. We look at two loan agreements wherein the relevant clauses regarding the amount, period and interest rates are mentioned, which are rep....
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....ull amount after deducting payment of Rs. 25 lacs paid by the defendants to the plaintiff on 06th January, 2018." 17. This judgment-decree of Single Judge of Hon'ble Delhi High court was confirmed by the Division Bench through order dated 27.7.2018 (attached at pp.70-82 of the appeal paperbook) wherein in paragraph 17, the Hon'ble Division Bench has held as follows:- "17. We find no infirmity with the view taken by the Single Judge that in the absence of leave to defend objection, with regard to the jurisdiction and the plaintiff being the money lender, could not have been considered. Additionally, we are of the view that once the appellant had entered into a settlement with the plaintiff and no plea of jurisdiction was raised at that point of time, the appellant cannot be allowed to raise the same at this stage. There is no merit in the appeal, the same is dismissed with costs of Rs.25,000." 18. A plain reading of the judgment of Single Judge of Hon'ble High Court of Delhi of 11.1.2018 makes it clear that the Hon'ble High Court has passed a decree against the defendants (Anjali Technoplast Limited & Ors.) for an amount of Rs.4,38,00617 alongwith interest @ 24% p.a. from 1.2.20....