TaxTMI 
TaxTMI 
2022 (6) TMI 1324
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....ffice situated at Flat No. B 63, 6th Floor, AV Kunj Apartments, Plot No. 87, IP Extension, Patparganj, East Delhi- 110092. 3. The details of transactions leading to the filing of this petition as averred by the applicant is as follows:- a) Corporate Debtor borrowed a sum of Rs. 2,50,00,000/- from the applicant for a period of 2 months vide loan agreement dated 24.02.2010 and borrowed another sum of Rs. 2,00,00,000/- for a period of 15 days vide loan agreement executed on 31.03.2010. The applicant initiated proceedings against the corporate debtor under Negotiable Instruments Act, 1881 upon dishonor of cheques issued by the corporate debtor in relation to the repayment of the loan agreement. b) A compromise deed dated 31.08.2013 was executed between the parties wherein the corporate debtor pledged to pay the applicant an amount of Rs. 3,22,02,660/- along with pendente lite and future interest @ 24% per annum till date of full realization of the entire amount and handed over a cheque of the said to the applicant which was also dishonored upon presentation. c) Consequently, applicant preferred a summary suit being Civil Suit....
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.... ambit of any of the clauses enumerated under section 5(8) of the Code. c) It is further stated that the present application is barred by limitation as the alleged debt in the present application arises out of decree of the Hon'ble High Court of Delhi in Civil Suit (Original Side) 66 of 2016 dated 11.01.2018 and the present application is filed on 13.12.2021. d) Further, the corporate debtor placed reliance on the NCLAT judgement of Appellate Tribunal in the matter of Sh. Sushil Ansal V. Ashok Tripathi (Company Appeal (AT) (Insolvency) No. 452 of 2020 dated 14.08.2020 where in it was observed that no decree holder who is covered within the definitions of a creditor given under Section 3(10) of the Insolvency and Bankruptcy Code (IBC) can come within the ambit of a class of financial creditor. e) The corporate debtor submit that the applicant has never approach any judicial forum for the purpose of execution of the decree passed in its favor in the year 2018 and the applicant only with the mala fide intention to make the IBC proceedings a recovery proceedings and to achieve his personal ulterior motive has filed the sec....
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....the Union Territory of Delhi, therefore is the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of respondent corporate debtor under sub-section (1) of Section 60 of the Code. 7. At the very first stage, we have to consider whether the alleged amount advanced by the applicant vide loan agreements dated 24.02.2010 and 31.03.2010 on the footing of which the Hon'ble High Court of Delhi in its judgment dated 11.01.2018 in the matter of CS (OS)66/2016 decreed the suit against the corporate debtor for a sum of Rs. 4,38,00,617/- along with interest @ 24% from 01.02.20216(sic) onwards falls under the definition of financial debt i.e., was disbursed against consideration for the time value of money. 8. At this juncture, it is relevant to refer the Hon'ble Supreme Court ruling in Jaypee Infratech case, where the Supreme Court held that there needs to be a disbursal against consideration for time value of money even in respect of transactions covered in clauses (a) to (i) of section 5(8): "46. Applying the aforementioned fundamental principles to the definition occurring in Section 5(8) of the C....
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....advances for a sum of Rs. 2,50,00,000/- from the applicant for a period of 2 months vide loan agreement dated 24.02.2010 and another sum of Rs. 2,00,00,000/- for a period of 15 days vide loan agreement executed on 31.03.2010 lacks the element of commercial effect of borrowing and time value of money as the alleged loan advances were for a very short period of time and no supporting evidence/document was presented by the applicant to establish the or time value of money. 12. It is essential to prove that the claim of a financial creditor must be based on the transaction between the debtor and creditor and not on the decree issued by a court or tribunal in any other case between the debtor and creditor. From the submissions made and documents perused, we find that the amount claimed under the decree is an adjudicated amount and not a debt disbursed against the consideration for the time value of money and does not fall within the ambit of any of the clauses enumerated under Section 5(8) of the 'I&B Code' as the "amount claimed under the decree is an adjudicated amount and not a debt disbursed against the consideration for the time value of money." 13. The Applicant have fai....
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....atements or otherwise to prove that it owns financial debt against the corporate debtor. In this summary enquiry, we cannot enter into the correctness of assertion of the applicant to establish the alleged loan amount as financial debt. We hold that evidence as produced by the applicant are not satisfactory to prove the nature of claim as financial debt and cannot be safely relied on. From the evidence on record, we hold that the applicant have only a claim on the corporate debtor which was further crystallized by the decree of the Hon'ble High Court Delhi in CS(OS) 66 of 2016, therefore, cannot come under the purview of the financial debt by any means whatsoever. 17. We would like to quote the following definitions of Section 3(10) and the same is quoted below: Section 3(10) Creditor "means any person to whom a debt is owed and includes a financial creditor, an 'Operational Creditor', a 'Secured Creditor, an 'Unsecured Creditor' and a 'Decree Holder'. 18. From the perusal of the aforesaid definition, we find that of course definition of creditor includes a 'Financial Creditor', an 'Operational Cr....
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....inancial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; 19. If we shall read all the definitions together then we find that the Financial Creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. 20. Since the present application has been filed under Section 7 of the IBC, therefore, we can say that the applicant claimed that a decree is a financial debt irrespective of its genesis i.e., the substratum on which the decree is adjudicated and became due but when we shall read the definition of claim, debt, financial debt and financial creditor then we find that the decree is not included as an financial Debt unless the claim on which decree is adjudicated is a financial debt, of course definition of Creditor include decree holder but definition of financial debt does not include any decree holder without ascertaining the true nature of the claim basis on which decree is adjudicated. 21. At this juncture, we would like to refer the judg....