Sudhir T Deshpande Vs Dhanada Corporation Limited (NCLT Mumbai)
On going through the facts and submissions of the Financial Creditor and the Corporate Debtor it is concluded that the Financial Creditor has not established that the money was disbursed to the Corporate Debtor and hence the question of default on the part of the Corporate Debtor does not arise.
Without proof of disbursement, the said amount cannot be claimed as financial debt, as a disbursement is a sine qua non for any debt to fall within the ambit of the definition of financial debt. Reliance is placed on Judgment of the Hon’ble National Company Law Appellate Tribunal in Dr. B.V.S Laxmi Vs. Geometrix Laser Solution Private Limited [2018] 142CLA321:
“30. In the present case, the Appellant has failed to bring on record any evidence to suggest that she disbursed the money has been made against ‘consideration for the time value of money’. There is nothing on the record to suggest that the Respondents borrowed the money. In absence of such evidence, the Appellant cannot claim that the loan if any given by the Appellant comes within the meaning of ‘financial debt’ in terms of sub-section (8)(a) of Section 5 of the ‘I & B Code”.
FULL TEXT OF THE NCLT JUDGMENT/ORDER
1. This is a Company Petition filed under section 7 of the Insolvency and Bankruptcy Code, 2016 (“IBC”) seeking to initiate Corporate Insolvency Resolution Process (“CIRP”) against Dhanada Corporation Limited, (“the Respondent”) alleging default in payment of a Financial Debt.
2. The Respondent Company is incorporated on 14.07.1986 under the Companies Act, 1956. The Authorized Share Capital of the Respondent/Corporate Debtor Company is Rs. 15,80,00,000/- and the Paid Up Share Capital is Rs. 5,59,33,581/-.
The Submissions of the Financial Creditor are as follows: –
3. The Corporate Debtor Company was earlier known as Vedant Hotels Limited. The change of name Certificate issued by the Ministry of Corporate Affairs is annexed with the Petition. The amounts paid to the Corporate Debtor were paid by Mr. Sudhir Deshpande and the family members of Mr. Sudhir T Deshpande on his behalf.
4. In the requisite Form, under the head “Particulars of Financial Debt” the Total amount of Debt granted is Rs. 4,61,00,000/- (Rupees Four Crores Sixty One Lakh Only). Total amount claimed to be in default is Rs. 23,22,23,222/- as on 30.09.2018. The said amount is payable along with further interest @ 19% p.a. from 01.10.2018.
5. The Financial Creditor submits that the above amounts were paid by and on behalf of Mr. Sudhir T. Deshpande as and by way of investment in the Corporate Debtor Company.
6. The Financial Creditor further submits that an e-mail dated 28.01.2011, sent by the Director of the Corporate Debtor Company states that the Financial Creditor would be paid an amount of Rs. 7,07,92,646/- on the date of maturity i.e. on 31.12.2011. The Corporate Debtor however defaulted making the above payment. In order to partly discharge the above debt, the Corporate Debtor Company issued various cheques aggregating to Rs. 2,20,00,000/-. The said cheques were however returned as dishonoured.
7. The Financial Creditor has attached copies of the Bank statements reflecting the payments by and on behalf of Mr. Sudhir T. Deshpande.
The Submissions of the Corporate Debtor are as follows: –
8. The Corporate Debtor filed its Reply dated 16.07.2019 in their defence. The Corporate Debtor has raised the issue of maintainability on the ground that the Financial Creditor has not demonstrated any claim, debt including the Financial Debt and/or default in relation to the alleged Corporate Debtor.
9. The Financial Creditor has not fulfilled the pre-requirements mentioned in form of the petition as per the prescribed Form 1 under section 7 of the Code. The Financial Creditor have not produced any evidence as to the existence of the claim. The Financial Creditor has failed to comply the said requirements of the part I of the said form.
10. Further, the purported Financial Creditor claims that the alleged Corporate Debtor incurred obligation i.e. debt amounting to Rs. 23,22,23,333/- arising out of certain documents produced in the Application. There is nothing to demonstrate any valid claim against the alleged Corporate Debtor.
11. The Corporate Debtor further submits that in the Petition under the particulars of Financial Debt, the total amount of Debt granted Rs 4,61,00,000/- (Rupees Four Crores Sixty One Lakh Only) was disbursed in following tranches :-
