TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 1026
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....tiation of Corporate Insolvency Resolution Process ("CIRP" in short) against the Corporate Debtor- Magicon Impex Private Limited, the present Respondent. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant. 2. Submission was made by the Learned Counsel for the Appellant that the Appellant was appointed as Consignment and Freight Agent (CFA) for handling etc. of the goods belonging to the Corporate Debtor/Respondent. Both parties entered into an Agreement for this purpose which Agreement was valid for a period of one year with effect from 28.02.2019. It was further added that in terms of the said Agreement, the Appellant made a refundable security deposit of Rs. 70,00,000/- with the Respondent which deposit was to be treated as an investment on which the Respondent was to provide a return of 1% per month besides a commission amount of 1% per month on monthly sales turnover. 3. It was further submitted that the Appellant on being dissatisfied with the business chose to terminate the Agreement on 11.12.2019 and thereafter sought refund of the security deposit amount which was followed up by multiple reminders. Since the Respondent did not clear th....
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....h the occasions. It has been noticed by the Adjudicating Authority that the principal amount claimed as outstanding in both the Section 7 petitions remained constant at Rs. 70,00,000/- only. Further it was also noted that the principal amount in both the applications also arose from the same transaction. It has also been noticed that the date of default in Part-IV is shown as 25.01.2020 on both these occasions. However, there is a variance in the computation of the interest amount in both the petitions. As against a lesser amount claimed as interest amount in the previous application, the interest amount in the present application has been enhanced by the Appellant to Rs. 41,63,151/- thus, aggregating a total outstanding amount of Rs. 1,11,63,151/-. 9. We also notice that the Adjudicating Authority has proceeded to unearth the reason as to how and why the interest amount stood at variance between the two Section 7 applications filed by the Appellant. The Adjudicating Authority in the impugned order has taken the trouble of comparing the computation of debt amount inclusive of principal amount and interest as made out by the Appellant in both the Section 7 applications as may be se....
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....ebt i.e., principal + interest comes to Rs. 78,40,000/- only, which is when we have not deducted the part payment on account of interest/commission made by the Respondent to the Petitioner. 21. In view of the above, the maximum financial debt entitlement of the Petitioner comes to Rs. 78,40,000/- only, which is less than the minimum threshold amount prescribed under Section 4 of IBC 2016, therefore, we find that the present petition is not maintainable. Accordingly, the petition is dismissed." 11. At a time when the principal outstanding amount; the applicable rate of interest and date of default in both the Section 7 applications remained constant and the duration of Agreement was only one year, the interest calculations should have remained confined to one year only. The reason for calculating the interest amount for a different time-period in the present Section 7 application, prima-facie, appears unjustified and irrational. We are therefore inclined to agree with the findings of the Adjudicating Authority that the interest calculation in the present Section 7 application has been unduly inflated and enhanced by the Appellant with the ulterior motive of crossing the threshold....
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....er transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing; [Explanation. -For the purposes of this sub-clause,- (i) any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and (ii) the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);] (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating 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-clauses (a) to (h) of this clause;" 14. Furthermore, it is a well settled proposition of l....