Murlidhar Vincom Pvt. Ltd. Vs Skoda (India) Pvt. Ltd. (NCLAT Delhi)
NCLAT Delhi held that the amount given as share application money did not constitute a financial debt under Section 5(8) of the Insolvency and Bankruptcy Code 2016 (IBC). Thus, CIRP application u/s. 7 rightly rejected.
Facts- The present appeal filed under Section 61 of Insolvency and Bankruptcy Code 2016 by the Appellant arises out of the Order dated 22.03.2024 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Bench-VI) in CP (IB) No. 554 of 2023. By the impugned order, the Adjudicating Authority has dismissed the Section 7 application filed by the Appellant for admitting M/s Skoda (India) Pvt Ltd-Corporate Debtor into the rigours of Corporate Insolvency Resolution Process. Aggrieved by the impugned order, the present appeal has been preferred by the Appellant.
Conclusion- There is no evidence of any valid concluded agreement between the two parties with respect to allotment of shares. Hence, the amount which was advanced by the Appellant cannot be treated to be amount in response to the private placement offer. Rule 2 of CADR Rules envisages that only if any amount is received pursuant to any private placement offer made in accordance with the provisions of the Companies Act, 2013 and no shares are allotted qua that amount, only then the sum becomes a deposit. When no proof of any private placement offer made in accordance with the provisions of the Companies Act, 2013 has been placed on record by the Appellant, the CADR Rules cannot be held to be applicable. Since the amount advanced cannot be related to Section 42 of the Companies Act, the applicability of Section 42(6) cannot be pressed as is being sought by the Appellant in the present case.
