AI Drafter 
TaxTMI 
TaxTMI 
2025 (11) TMI 1342
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....; (Oral) This appeal is directed against the order dated 02.07.2024 by which an application filed by the Appellant under Section 7 of the Code bearing RCP (IB) No. 10/MB/2023 connected to CP (IB) No. 4426/MB- IV/2019 has been dismissed for non-prosecution. 2. Brief facts of this case are that the Appellant filed an application under Section 7 of the code against the Corporate Debtor, namely, Savair Energy Ltd. for the resolution of its debt of Rs. 3,70,00,000/ -. 3. The application was initially dismissed by the Tribunal vide its order dated 20.01.2023 observing that "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 und....
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.... not be bound by the Joint Venture MoU. The amounts paid by the Financial Creditor to the Corporate Debtor took the character of loan from Financial Creditor to Corporate Debtor. The Board of Directors had duly authorised Mr. Saji Anthony to avail unsecured loan from the Corporate Debtor. The liability to repay the loan primarily vested with the Corporate Debtor. The Corporate Debtor had accepted before the AA that it is not in a position to repay `debt' because of financial distress. The AA ought to have admitted the Application of the Appellant under Section 7 of the IBC, 2016 as there is no dispute about the debt' or liability of the Corporate Debtor and the Corporate Debtor has admitted that it is defaulting in repayment of debt....
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....ion on the date of default and submits that the arguing Counsel is not available today due to medical emergency and seeks adjournment. Final opportunity is granted to the Petitioner, failing which the matter will be dismissed for non-prosecution on the next date of hearing. 3. List this matter for further consideration on 02.07.2024. 7. Thereafter, the impugned order came to be passed on 02.07.2024. The operative part of the said order is captured in para 5 to 7 which are reproduced as under :- 5. During the course of arguments, this Bench noticed that the date of default has not mentioned in the Part-IV of the captioned Petition and also not disclosed the same anywhere in the records. On 07.05.2024, the Applicant sough....
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....ave loudly called out the case for the respondent to appear but no one has put in appearance, therefore, the respondent is proceeded against ex-parte. List this appeal for ex-parte arguments on 28.04.2025." 10. Counsel for the Appellant while arguing the ex-parte appeal has submitted that the Appellant had prepared an affidavit dated 06.06.2024 of Arvind Laxminarayan Kamath aged about 55 years in which the date of default was mentioned as 29.07.2017 but the said affidavit could not be filed before the Court due to circumstances beyond the control of the appellant as the Counsel was not available due to medical emergency. The said affidavit is also reproduced as under :- AFFIDAVIT OF THE FINANCIAL CREDITOR I, Mr. Arvi....
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....the 3,50,00,000/- loan amount, along with 33% profit before tax of the-order received from MEIL or Rs. 50,00,000/- whichever is higher. The copy of the Mot-I is annexed and marked as "Exhibit - A". 4. I say that, vide a series of 5 traches, the Financial Creditor distor amount of Rs. 3,20,00,000/- (Rupees Three Crores Twenty Lakhs Only) ("Principal Loan Amount") to the Corporate Debtor. I further say that, the Parties owing to change in circumstances, agreed to mutually terminate the MoU-1 and accordingly executed another Moll dated 29th April, 2017 ("MoU-2"). The copy of MoU-2 is annexed and marked as "Exhibit - B". 5. I say that, the parties executed another Memorandum of Understanding dated 294 April, 2017 for the purpo....
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....ay that in view of the above, the date of default be considered as 29th July, 2017. 8. I say that, whatever stated hercinabove is true and correct to the best of my knowledge and belief. Solemnly affirmed at Thane This 6^th day of June, 2024 Advocate for Financial Creditor 11. It is further submitted that in the order passed by this Court in its appeal it has been categorically held that "the CD had accepted before the AA that it is not in a position to repay debt because of financial distress" which means that the debt is not in dispute. It is submitted that this Court further observed that "the CD had admitted that that it is defaulting in repayment of debt due to its financial condition" which means....