Sanaya Tea Pvt Ltd v. Vinergy International Pvt Ltd

1. The order was pronounced in open court on 18.1.2019. The detailed order is being made available today.

2. It is a Company Petition filed u/s 7 of Insolvency & Bankruptcy Code, 2016 (IBC) to initiate Corporate Insolvency Resolution Process by Financial Creditor, namely Sanaya Tea Private Limited against Corporate Debtor, namely Vinergy International Pvt. Ltd. stating that the Corporate Debtor failed to make payment of Rs. 1,75,30,170/-. The date of default has been stated as 6.1.2017.

3. The Petitioner argued that a financial debt of Rs. 1,00,00,000/- given to the Respondent remains unpaid and the Corporate Debtor has admitted its liability in the reply filed before this Tribunal.

4. We have heard the parties and perused the record. The following facts arising from the petition. IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH CP 3006/IBC/NCLT/MB/MAH/2018

5. The Petitioner has filed the present petition in form 1 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, (hereinafter referred as AAA Rules) claiming to be a financial creditor and the debt to be financial debt.

6. In part IV in the column of Particulars of Financial Debt, of the form 1, the Petitioner has stated A private direct loan was given to the Respondent of Rs. 1,00,00,000/- with an interest rate of 16% for a period of 5 years. The operational creditor issued two cheques on 11.4.2014 of Rs. 60,00,000/- and Rs. 40,00,000/- respectively which came to be encashed by the corporate debtor on 11.4.2014.

7. In part V in the column of Particulars of Financial Debt [Documents, Records and Evidence of Default] of the form 1, under the list of other documents attached to this application, the Petitioner has mentioned a statutory notice dated 4th may 2018 under section 9 of IBC.

8. The Petitioner has annexed the following documents to the petition:

a) Bank Statement of Financial Creditor for the month of April, 2014 showing debits of Rs. 60,00,000/- and Rs. 40,00,000/- on 11.4.2014.

b) Confirmation Letters from the Corporate Debtor to the Financial Creditor for the years 2014-15, 2015-16, 2016-17 and 2017-18. These letters include the interest paybable.

c) Notice dated 6th January, 2017 sent by Petitioners advocate to the Respondent. This notice states that a private-direct loan, akin to an inter-corporate deposit was obtained by the Respondent. It also notes that neither the loan amount nor the interest of 16% on the loan was paid. The notice in paragraphs 3 & 4 states that the Respondent has not furnished a balance confirmation to the Petitioner.

d) Reply from the Corporate Debtor dated 9th January 2017 to advocates Notice dated 6th January, 2017. The reply states that the Respondent cannot make any payment on account of injunction/ attachment imposed by the Honble Bombay High Court in an Arbitration Petition with respect to a Foreign Award.

e) Statutory notice dated 4th may 2018 under section 9 of IBC sent by Petitioners Advocate to the Respondent. The notice states that the Petitioner had advanced a private direct loan of Rs. 1,00,00,000/- as per the details of the bank statement and confirmation letters annexed to the notice. IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH CP 3006/IBC/NCLT/MB/MAH/2018

9. The affidavit in support of the petition states that the demand notice dated 4.5.2018 u/s 9, IBC was delivered to the Corporate Debtor on 10.5.2018 by registered post as well as hand delivery. It also states that the Corporate Debtor has failed to repay the amount and failed to reply to the demand notice. It is also stated that the Corporate Debtor has not given notice relating to a dispute on the unpaid operational debt in terms of IBC.

10. The Respondent has filed a reply dated 12.12.2018, stating

a) The petition is misconceived and not maintainable.

b) A private direct loan of Rs. 1,00,00,000/- through cheques was availed by the Corporate Debtor for a period of 5 years at the interest rate of 16%.

c) Confirmation letters for the FY 2014-15, 2015-16, 2016-17 and 2017-18 were issued in favour of the Petitioner on account of the outstanding dues as per the Respondents books of accounts.

d) Advocates notice dated 6.5.2017 was addressed to the Respondent by the Financial Creditor to clear the dues.

e) The Respondent replied to the Advocates notice informing the financial creditor that the Corporate Debtor could not make any payments on account of injunction/ attachment imposed by the Honble High Court in an Arbitration Petition with respect to a foreign award.

f) The Corporate Debtor received a statutory notice dated 4.5.2018 under the IBC.

g) The liability is not ascertained as the Respondent is constrained by the High court order to make payments.

h) The Respondent cannot make any payments as of now. An injunction/ attachment imposed by the Honble High Court in an Arbitration Petition with respect to a Foreign Award is till subsisting and Civil Appeal challenging the order of the Honble High Court is pending final hearing in the Honble Supreme court being Civil Appeal No. 8166 of 2016.

11. Form 1 of the AAA Rules under the particulars of financial debt [documents, records and evidence of default] requires the latest and complete copy of the financial contracts reflecting all amendments and waivers up to date. The Petitioner can also annex other documents to prove existence of the financial debt, the amount and date IN THE NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH CP 3006/IBC/NCLT/MB/MAH/2018 of default. However, in the present case, the Petitioner has not annexed any document inter-se parties reflecting the purported loan.

12. Initially the Petitioner filed petition u/s 7, IBC claiming himself to be a Financial Creditor, but on perusal of the record it appears that the Petitioner has given notice u/s 9, IBC pretending himself to be an Operational Creditor. The Petitioner has not filed any document to substantiate its claim of being a Financial Creditor and debt as Financial Debt. Petitioners claim is totally based on the oral submission that he has given a credit to the Corporate Debtor, which is evident from the statement of account of Financial Creditor, from which amount has been transferred to the Operational Creditors account. It is pertinent to mention that only by transferring amount to the account of Corporate Debtor, a person cannot claim to be a Financial Creditor. There are no documents to prove a financial debt.

13. There are prima facie contradictions in the petition as the petitioner has sent a demand notice treating the debt in question as operational debt as well as a letter treating it as financial debt.

14. Instead of opposing these contradictions, the Corporate Debtor has admitted the liability to pay. On perusal of the record, it appears that the petition is collusive.

15. Accordingly, the Petition is dismissed.

16. The Registry is at this moment directed to immediately communicate this order to the Operational Creditor and the Corporate Debtor by speed post and email. Sd/- Sd/- RAVIKUMAR DURAISAMY V. P. SINGH MEMBER (TECHNICAL) MEMBER (JUDICIAL) DT. 08.02.2019