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2024 (11) TMI 132
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....UDGMENT Per : Justice Rakesh Kumar Jain : The Appellant is the Promotor/Director of Yours Ethnic Foods Pvt. Ltd. (Corporate Debtor) who has assailed the validity of the order dated 09.10.2023, passed by the National Company Law Tribunal, Ahmedabad (in short 'Tribunal'), admitting CP (IB) No. 322/NCLT/AHM/2022, filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code'). 2. The brief facts of this case are that Svakarma Finance Pvt. Ltd. (Financial Creditor), vide its letter dated 18.07.2019, sanctioned working capital term loan to the CD, pursuant to which a loan agreement (in short 'Agreement') was executed on 25.07.2019 between the Financial Creditor and the Corporate Debtor. The loan was granted for a period o....
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....repayment of each monthly instalment was 20th of each month, failing which interest at the rate of 14% was applicable. 6. It is alleged by the Appellant that the amount of Rs. 3,75,954/- paid by the CD on 18.02.2020 was towards the monthly instalment for the month of January that too without additional interest which was to be paid by the CD at the rate of 3% per month, therefore, the CD was in default right from the month of January, 2020 and had also failed to pay the instalment which fell due on 20.02.2020 which is evident from the email dated 12.03.2020 sent by the Financial Creditor to the Corporate Debtor. 7. It is also the case of the Financial Creditor that the full payment of instalment of the month of January, 2020 and no paymen....
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....12. The Tribunal found debt and default in this case and ultimately admitted the petition, appointed the IRP and imposed Section 14 of the Code. 13. In this appeal, filed under Section 61 of the Code, the precise grievance of the Appellant is that the Financial Creditor has given various dates of default i.e. in column II of Part IV the date of default has been mentioned as 20.02.2020 and in the same column it is mentioned that the default has been committed since January, 2020. It is also the case of the Appellant that the recall notice was issued on 06.11.2020, granting a period of 15 days, which expired on 21.11.2020 which means that the default had occurred only on 21.11.2020 when the period granted by the FC for repayment of loan amou....
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....reas it has been provided in the agreement itself that loan can be recalled if the instalment or even a part of it is not paid. The default was committed by the CD in Jan, 2020 itself and it did not pay anything in respect of instalment of Feb, 2020 which was due, therefore, the default, if any, occurred either in Jan, 2020 or Feb, 2020 but the Financial Creditor chose the date of default as 20.02.2020 which is prior to 25.03.2020. 15. It is also submitted that the date of default defined in Section 3(12) of the Code provides that "non-payment of debt which has become due and payable whether in whole or any part and is not paid by the CD". It is submitted that the loan recall notice is not hit by Section 10A because it only recalls the loa....
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.... to the CD to pay off the defaulted amount has to be considered to be the date of default as 21.11.2020 to hold that the application filed under Section 7 is hit by Section 10A of the Code? 18. As we have already mentioned that the loan was advanced by the FC to the CD in two tranches, based on the agreement to which both the parties were bound, Clause 5.1.1 of the agreement deals with the dues to be repaid by the CD in which schedule 1 of the agreement states that due date shall be as per the repayment schedule and schedule 2 and repayment schedule in schedule 2 reproduced hereinabove, clearly shows the due date of the amount of instalment etc. There is no dispute that the amount of instalment was to be paid on monthly basis. The CD did n....