The NCLAT held that the Appellant has failed to establish that the Corporate Debtor owed an amount to the Appellant and it defaulted.
The National Company Law Appellate Tribunal (NCLAT), New Delhi Bench comprising Justice Rakesh Kumar Jain and Kanthi Narahari, Technical Member were on Thursday hearing an Appeal filed by the Financial Creditor and held that the Appellant failed to produce any document subsequent to entering into an MoU to establish that the Corporate Debtor owed the amount to the Appellant.
Facts:
The Appellant filed an Application under Section 7 of the I&B Code, 2016 before the Adjudicating Authority (NCLT), Kolkata Bench, against the Corporate Debtor seeking initiation of CIRP on the ground that the Corporate Debtor committed default in paying the financial debt of a sum of Rs.4,62,92,880/- as per Part-IV of Form-1. After the Constitution of Cuttack Bench, the Application was transferred to the Cuttack Bench and renumbered as T.P. No. 28/CTB/2019. The Corporate Debtor filed its reply and contended that the erstwhile directors entered into an MoU dated 22.06.2017 and the net consideration was fixed as Rs.26 crores to be paid to the outgoing parties/directors. It was further contended that on 12.04.2018 a letter was issued to Mr. Ravinder Singh confirming that his net liability after adjustments in terms of the MoU and clarifications stands at Rs.32 lacs. It was stated that the letter was duly acknowledged by Mr. Ravinder Singh and on the basis of the said acknowledgement, the balance due of Rs.32 lacs was paid through RTGS on 16.04.2018.
Analysis:
The Adjudicating Authority categorically held that by letter dated 12.04.2018, the Corporate Debtor has issued a letter to the Appellant, wherein it was stated that based on the Memorandum of Understanding dated 26.02.2017, a sum of Rs.32 lacs was due and payable by the Corporate Debtor to the Appellant towards a full and final settlement of all dues. The Adjudicating Authority also observed that the said letter has been acknowledged by the Appellant. However, the Counsel for the Appellant denied the authenticity of the letter. The Adjudicating Authority also observed that in the audited Balance Sheet for the year 2017-18, it was clear that as of 31.03.2018, no amount is due and payable by the Corporate Debtor to the Appellant/ Applicant.
The Appellate Authority noted that the AA observed that there was no agreement regarding terms and conditions of repayment and there is no bank statement or any other supporting evidence produced in support of the claim of the Appellant that what is the mode of transaction for providing such stated loans to the Corporate Debtor.
The Learned Counsel for the Appellant contended that the Corporate Debtor defaulted in payment of the amount and relied upon the Balance Sheet for the year 2015-16 of the Corporate Debtor. It was seen under the category of long-term borrowings the name of the Appellant reflects and the amount shown as Rs.6,61,16,240/- .
"The Balance Sheet of the Corporate Debtor is for the Financial Year 2015-16, however, the MoU entered on 27.06.2017 which is subsequent to the Balance Sheet. The Appellant failed to produce any document subsequent to entering into an MoU to establish that the Corporate Debtor owed the amount to the Appellant", the Appellate Authority noted.
As per the provisions of law, the Financial Creditor has to furnish the details of the default. In the present case, the Appellant/ Applicant has failed to establish that the Corporate Debtor owed an amount to the Appellant and it defaulted. Further, the Appellant failed to establish the debt and default except in Part-IV of Form-I stating the total amount of debt granted Rs.4,62,92,880/- and there was no evidence with regard to disbursal of the amount from the account of the Appellant against the consideration for the time value of money.
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