TaxTMI 
TaxTMI 
2023 (9) TMI 1291
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.... Section 7 of IBC, 2016 against `Savair Energy Limited' (hereinafter referred to as the `Corporate Debtor') for initiation of Corporate Insolvency Resolution Process (`CIRP'), was dismissed. 2. The Application before the Adjudicating Authority (`AA') was filed by the Financial Creditor on 06.12.2019 under Section 7 of the IBC, 2016, seeking initiation of CIRP against the Corporate Debtor. The Financial Creditor had filed the said Application for default amount of Rs.3,70,00,000/- comprising of principal amount of Rs.3,20,00,000/- and interest dues of Rs.50,00,000/- as per Part IV of Form - I. The AA had noted that no `date of default' is mentioned in Part IV of Form - I but the `date of default' as per Memorandum of Understanding (`MoU') dated 29.04.2017 works out to 28.06.2017. 3. The facts as noted by the AA are that the Financial Creditor had entered into an MoU with the Corporate Debtor on 04.03.2017 wherein it was agreed between the Financial Creditor and the Corporate Debtor to work jointly for execution of Orders received for Compressor Packaging and spares and also it was agreed to form a new division/entity for such Orders. It was agreed that the business of said div....
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....h interest, if any, which is disbursed against the consideration for the time value of money and includes- (a) money borrowed against the payment of interest; (b) any amount raised by acceptance under any acceptance credit facility or its de-materialised equivalent; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other accounting standards as may be prescribed; (e) receivables sold or discounted other than any receivables sold on nonrecourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; i) From the perusal of the above definition, it is clear that the transaction of Investment under a Joint Venture arrangement does not qualify as a financial debt under Sec. 5(8) of the Code. Nonetheless, even if it is admitted that this transaction took the character of....
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.... Resolution dated 27.02.2017 authorising Mr. Saji Anthony to avail unsecured loan on behalf of the Corporate Debtor from the Appellant Financial Creditor is scanned below: 9. The Learned Counsel for the Appellant submitted that Mr. Saji Anthony was duly authorised by the Board to avail unsecured loan from the Financial Creditor, the loans were disbursed to the Bank Accounts of the Corporate Debtor directly through R.T.G.S. and therefore the liability to repay the `debt' was of the Corporate Debtor. Learned Counsel for the Appellant stated that a Notice of Demand dated 08.11.2019 for money `due and payable' with interest was served on the Corporate Debtor through the Advocate and Legal Advisor of the Financial Creditor. The copy of the said Notice is available at Page 91 & 92 of the Appeal Paper Book. This Notice was not responded to by the Corporate Debtor. The Learned Counsel also submitted that the Managing Director of the Corporate Debtor had appeared in person before the AA on 14.03.2022 and had submitted that the Company is not in a position to repay its `debt' as the turnover as well as the profitability of the Company has been reduced tremendously during the last two to t....
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....er back to the AA for consideration of the Application of Financial Creditor under Section 7 of the IBC, 2016. The Appellant is directed to appear before the AA on 12.10.2023 for this purpose. No order as to costs. ============= Document 1 1 MEMORANDUM OF UNDERSTANDING (MOU) The Memorandum of Understanding was entered into by and Limited (CIN: 063011MH2001PLC130547) (SEL) having between Savair Energy registered office at Savair House, A-564, TTC Industrial Ares, Mahape, Navi Mumbai 400 701, represented by Mr. Saji Antony, Managing Director, and Mascot Capital s Marketing Pvt. Ltd. (CIN: U74120MH2012PTC235355) (MCMPL) having registered office at Gangotri Glaodier Annex, Kavesar, Opp. Vijay Nagari, Thane (W) - 400 607 represented by Mr. Arvind Kamath, Director the two parties are collectively referred to as the PARTIES) on 4th March, 2017 under the terms as discussed between the parties therein. That by mutual consent, the parties have decided to terminate the NOU dated 4th March, 2017. With this termination of MOU, none of the parties are bound by the terms and conditions of the MCU. For Savair Energy Limited Saji Antony ....