TaxTMI 
TaxTMI 
2022 (12) TMI 1245
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....on professional dated 25.04.2021 (ii) To direct the resolution professional to re-verify the books of the Corporate Debtor and admit the amount claimed Rs. 26,00,000/- exclusive of interest as the same shall be as fixed by this Tribunal. (iii) To induct the Applicant as Financial Creditor in the Committee of Creditors. (iv) To pass any such order deem fit and proper in the interest of justice. 2. It is averred in the Application that the Applicant is in the business of lending for micro, Small & Medium business enterprises having office at Chennai. It was submitted that during the year 2019 in the due course of business, the Corporate Debtor's managing director Mr. B. Dhanraj got acquainted with the Applicant through SMS Foundati....
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.... to take further time on account of filing settlement terms before this Tribunal. Accordingly, on 16.10.2019, this Tribunal was pleased to call the matter and again on 23.10.2019 for reporting settlement. 7. It was submitted that Mr. Dhanraj was insisting the Applicant to transfer balance funds, however it was submitted that the applicant has withheld and has stated that a Settlement is required to be arrived at between the parties and the matter is also required to be disposed of. Accordingly, on 23.10.2019 a memorandum was filed for withdrawal of the case from the file of this Tribunal - and accordingly an order was passed with liberty to file fresh in the event the Corporate Debtor failed to pay in accordance with the settlement arrived....
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....vidence furnished to establish the intention to pay it as a financial debt". Aggrieved by the said decision, the Applicant has preferred the present Application before this Tribunal. COUNTER FILED BY THE RP: 12. The Learned Counsel for the Respondent had filed a counter wherein it was stated that the Applicant is not a company as presented in the application. It is an unregistered partnership firm cannot file a suit in a court of law as per provisions of Section 69(3) of Indian Partnership Act, 1932. 13. Further it was averred in the counter that it is not known whether an unregistered partnership firm could provide funds to the tune of Rs. 2,50,00,000/- to one single Company. As per section 73 of the Companies Act, 2013 a Private Limite....
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....at the Unregistered partnership firm cannot file a suit in a court of Law as per section 69(3) of the Indian Partnership Act 1932. The other being that there was No Entry in the books of account of the corporate debtor to the effect that any amount was paid by the Applicant. The Applicant has refuted that the first ground that the Respondent had cited an irrelevant sub-section as per the Indian Partnership Act which is not applicable to the present application. 17. Further it was submitted that from the Bank Accounts filed by the Applicant in Annexure-IV of the Applicants paper book shows clearly that the amounts were transferred from bank of Baroda account to bank account of the Corporate Debtor and not paid by cash. The fact of transfer ....
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....has rejected the claim of the Applicant in the capacity as the Financial Creditor in respect of the Corporate Debtor on the following ground; "Claim amount is not based on any valid loan agreement. No satisfactory evidence furnished to establish the intention to pay it as a financial debt". 21. It could be seen that the Applicant has not placed on record any financial contract in order to substantiate the claim filed before the RP. Further, from the submissions made it could be seen that there is no contract/agreement entered into between the parties for the disbursement of the said loan to the Corporate Debtor. 22. As per the definition of the expression "financial debt' in sub-section 8 of Section 5 of IBC, 2016 which is as follow....
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....ulating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial 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-clause (a) to (h) of this clause; 23. It could be seen that the term financial debt denotes a 'debt' along with interest, which is disbursed against the consideration for the time value of money. In the present case, the amount has been disbursed to the Corporate Debtor, however there is no document placed on record to....