K.S. Sreenivasan vs Landmark Housing Projects (India) Pvt. ...

K.S. Sreenivasan, No. 47/1, Sadullah Street, T. Nagar, Chennai - 600017 ...Appellant

Vs.

Landmark Housing Projects (India) Pvt. Ltd. No. 7, Saravana Street, T. Nagar, Chennai - 600017 ...Respondent

Present: For Appellant: Mr. Kumar Anurag Singh, Mr. DeveshTripathi, Ms. Anasuya Choudhury, Advocates For Respondent: Mr. R. Balasubramaniam, Senior Advocate. Mr. Kumar Dushyant Singh and Mr. Mukul Lather, Advocates.

JUDGEMENT

Jarat Kumar Jain. J:

The Appellant, Mr. K.S. Sreenivasan has preferred the instant

Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016

(In Short I&B Code) against the impugned order of dismissal of the

Application under Section 7 of the I&B Code, filed by him, claiming to be

a Financial Creditor.

2.1 The Corporate Debtor (Respondent herein) Landmark Housing

Projects (India) Pvt. Ltd. is engaged in the business of Real Estate

Development. The Corporate Debtor and the Financial Creditor (Appellant

herein) entered into an agreement for sale on 03.04.2015. The Corporate

Company Appeal (AT) (Ins) No. 97 of 2020 2

Debtor has agreed to sell 1,89,299 sq. ft. of saleable area in Schedule 'A'

property described in Schedule 'B' (in short saleable area) @ pre-launch

price of Rs. 3,000/- per sq. ft. at the time of signing of this agreement,

the Financial Creditor has paid a sum of Rs. 5 lacs by way of cheque

dated 03.04.2015 and freeze saleable area. The Financial Creditor agreed

to pay the balance amount in stages together with other charges to the

Corporate Debtor as per the progress of the project namely TORRENCE.

It is also agreed between the parties that the Corporate Debtor shall

repurchase the entire saleable area @ of Rs. 4,535/- per sq. ft. at any

time as may be desired by the Financial Creditor. The schedule for

payment payable by the Corporate Debtor to the Financial Creditor on

buy back shall be as follows:-

Sl. Buy-back On or Surrendering Schedule No. amount in Rs. before date extent in sq. property ft.

1. 10,01,98,660.00 22.02.2016 65276.00 B 2. 10,01,76,645.00 22.08.2016 65276.00 B 3. 9,01,76,645.00 22.02.2017 58747.00 B 29,05,73,965.00

2.2 It is also agreed that ones the Financial Creditor desires that the

Corporate Debtor shall buy back the entire saleable area all the

obligations of the Financial Creditor for any further stage payments under

this agreement shall cease. As per the agreement, the Financial Creditor

has absolute right to assign, sell, dispose off or alienate saleable area to

any third party/parties at any price.

Company Appeal (AT) (Ins) No. 97 of 2020 3

2.3 The Corporate Debtor subsequently issued three cheques for the

differential amount i.e. Rs. 1,535 per sq. ft. corresponding to each buy

back date 22.02.2016, 22.08.2016 and 22.022017 respectively for the

amount of Rs. 10,01,98,660/-,10,01,98,660/- and 9,01,76,645. It is

alleged that the Corporate Debtor made repeated requests not to deposit

the cheques and trust him to repay the entire amount in due time.

However, the Corporate Debtor has not made any payment.

2.4 Thereafter, the Financial Creditor issued a legal notice dated

13.02.2019 to the Corporate Debtor demanding the financial debt which

was due and payable. After a prolonged discussion between the Corporate

Debtor and the Financial Creditor, the Corporate Debtor vide letter dated

07.02.2019 acknowledged the total debt amount of Rs. 29,05,73,965/.

Even though the Corporate Debtor has not paid the outstanding amount

to the Financial Creditor. Therefore, for the financial debt of Rs.

29,05,73,965/- with interest @ 12.5% per annum, the Financial Creditor

has filed an Application under Section 7 of the I&B Code, for initiation of

Corporate Insolvency Resolution Process (CIRP) against the Corporate

Debtor.

3. The Corporate Debtor has resisted the Application and contended

that the Financial Creditor has not paid the balance price of saleable area

amounting to Rs. 56,73,97,000/- to the Corporate Debtor. The Financial

Creditor has admittedly paid only a sum of Rs. 5 lacs. The Financial

Creditor has claimed Rs. 29,05,73,965/- as financial debt. Such amount

Company Appeal (AT) (Ins) No. 97 of 2020 4

never disbursed to the Corporate Debtor. Therefore, in the Application no

date of disbursement as well as date of default is mentioned.

4. After hearing Learned Counsel for the parties, the Adjudicating

Authority held that the Financial Creditor has disbursed only a sum of

Rs. 5 lacs as against the agreed sum to be disbursed under the buyback

agreement i.e. Rs. 56,78,97,000/-. However, the Financial Creditor has

claimed for a sum of Rs. 29,05,73,965/- which was never disbursed to

the Corporate Debtor. The Financial Creditor has not fulfilled his

obligation under the agreement to disburse a balance sum of Rs.

56,73,97,000/- to the Corporate Debtor, therefore, the Corporate Debtor

is not obliged to perform his reciprocal promise of buying back the

saleable area from the Financial Creditor. Thus, the Financial Creditor

has failed to satisfy that a sum of Rs. 29,05,73,965/- can be considered

as a financial debt. Being aggrieved with this order the Financial Creditor

has filed this Appeal.

5. Learned Counsel for the Appellant submitted that under the

agreement for sale dated 03.04.2015, the Appellant acquired two options

but not the obligation. Option 'A' the right but not the obligation to buy

the saleable area at a pre-launch price of Rs. 3,000 per sq. ft. and Option

'B' the right but not the obligation to sell back the saleable area to the

Respondent @ Rs. 4,535 per sq. ft. The Appellant invoked Option 'B'.

Clauses 9&10 of the said agreement for sale are non-obstante clauses,

therefore, these clauses have overriding effect on clause 2 of the

agreement, that to purchase saleable area @ 3,000 per sq. ft.

Company Appeal (AT) (Ins) No. 97 of 2020 5

6. Learned Counsel for the Appellant submitted that the Appellant

has acquired absolute right to sell the saleable area to any party at any

price. Taking advantage of upside fluctuation in the market price, the

Appellant sold and the Respondent bought the said rights from the

Appellant and promise to pay in three instalments a differential price (Rs.

4535 - Rs. 3,000) Rs. 1,535 per sq. ft. x 1,89,299 sq. ft. = 29,05,73,965/-

. Thus, the financial debt of Rs. 29,05,73,965/- was due and payable to

the Appellant by the Respondent. For the same, the Respondent issued

three cheques dated 22.02.2016, 22.08.2016 and 22.02.2017 for the total

sum of Rs. 29,05,73,965/-. The Respondent vide its letters dated

22.02.2017 & 07.02.2019 categorically acknowledged the liability, such

transaction constitutes a financial debt under Section 5 (8) (g) of the I&B

Code. An acknowledgement of liability must involve an admission of

subsisting jural relationship between the parties. A conscious affirmation

of an intention of continuing such relationship in regard to an existing

liability. For this purpose, placed reliance on the Judgment of the Hon'ble

Supreme Court in the case of J.C.Budhraja Vs. Chairman Orisha Mining

Corporation Ltd. (2008) 2 SCC 444.

7. Learned Counsel for the Appellant further submitted that the

Respondent had issued aforesaid three cheques that itself is an

admission on the part of the Respondent of the debt owed towards the

Appellant and as per the Section 118 of the Negotiable Instrument Act,

until the contrary is proved, there shall be a presumption that negotiable

instrument was drawn for consideration. Moreover, in terms of Section

Company Appeal (AT) (Ins) No. 97 of 2020 6

139 of the NI Act, it shall be presumed unless the contrary is proved that

the holder of cheque, received the cheque for the discharge in whole or in

part of any debt or liability. The Respondent has not produced any

documentary evidence against these presumptions.

8. Learned Counsel for the Appellant submitted that under the sale

agreement dated 03.04.2015, the Appellant has initially paid Rs. 5 lacs

to the Respondent and thereby fulfilled the obligation of payment and

admittedly, there is disbursal of money. The Adjudicating Authority

erroneously entered into deciding the quantum of debt which is beyond

the scope of Section 7 of the I&B Code. For this he placed reliance on the

Judgment of this Appellate Tribunal in the Case of Mr. Gouri Prasad

Goenka Vs. PNB Company Appeal (AT) (Ins) No. 28 of 2019. This Appellate

Tribunal in the case of Dr. B.V.S. Lakshmi Vs. Geometrics Laser

Solutions Pvt. Ltd. Company Appeal (AT) (Ins) No. 38 of 2017 held that it

is not necessary to show that an amount has been actually disbursed to

the Corporate Debtor. The disbursement against the consideration for the

time value of money is the main factor. Thus, a financial debt arose out

of a derivative transaction benefiting from fluctuation in market price, in

terms of Section 5 (8) (g) of the I&B Code. Thus, in the instant case the

transaction is a financial debt as defined under Section 5(8) (g) of the I&B

Code.

9. Learned Counsel for the Appellant also submitted that the Learned

Adjudicating Authority has fell into error in holding that the agreement

to sell is a reciprocal contact or a contingent contract. The transaction

Company Appeal (AT) (Ins) No. 97 of 2020 7

under the agreement is not a transaction to purchase saleable area and

hence, fulfilment of reciprocal promises does not arise. It is further

submitted that the Adjudicating Authority or this Appellate Tribunal

under the I&B Code will not go into the aspects of the veracity of the

agreement, It's breach, void or voidable etc. The Adjudicating Authority

is not a Civil Court to decide the breach of contract between the parties.

As held by this Appellate Tribunal in the case of M/s Saregama India Ltd.

Vs. M/s Om Movie Makers Pvt. Ltd. Company Appeal (AT) (Ins) NO. 359

of 2019.

10. It is also submitted that the Appellant has satisfied that the

transaction is a financial debt and the Appellant is a Financial Creditor

and has also satisfied that there is a debt payable in law and a default on

the part of the Respondent (Corporate Debtor). In such a situation, the

Adjudicating Authority is left with no option but to admit Application

under Section 7 of the I&B Code, for initiation of CIRP. For this purpose,

placed reliance on the Judgment of this Appellate Tribunal in the case of

Ranveer Ranjit Vs. M/s Vijay R. Vakharia and Ors. Company Appeal (AT)

(Ins) No. 646 of 2018.

11. Per contra learned counsel for the Respondent submitted that

clause 2 of the agreement for sale provides that the Appellant shall have

to purchase the saleable area @ of Rs. 3,000 per sq. ft. amounting to Rs.

56,78,97,000/- once the amount is paid to the Respondent then the

Respondent by exercising, the option of repurchase has to pay @ Rs.

4,535 per sq. ft. amounting to Rs. 85,84,70,965/-. The Appellant has

Company Appeal (AT) (Ins) No. 97 of 2020 8

admittedly paid only a sum of Rs. 5 lacs and he has not paid balance

price of the saleable area. The Appellant is claiming a financial debt

amounting to Rs. 29,05,73,965/- however, in the Application, date of

disbursement of a financial debt as well as the date of default is not

disclosed as this amount was never disbursed to the Respondent. The

Adjudicating Authority has rightly held that under the buyback

agreement, the Appellant ought to have fulfilled his promise at first and

since, he has not fulfilled his promise, the Respondent is not obliged to

perform his reciprocal promise of buy back saleable area.

12. It is further submitted on behalf of the Respondent that for

securing the differential amount between the pre-launch price and buy

back price amounting to Rs. 29,05,73,965/-. The Respondent gave three

cheques to the Appellant. Thus, this amount is not a financial debt.

13. It is also contended on behalf of the Respondent that this

agreement does not reflect the real transaction between the parties and

the Appellant is guilty of suppression of material facts. The Appellant and

the Respondent have had commercial relationship from the year 2006.

The agreement for sale in question and several other agreements which

have been filed by the Respondent are suppressed by the Appellant.

14. Learned Counsel for the Respondent submitted that this Appellate

Tribunal in the case of M/s Saregama India Ltd. Vs. M/s Om Movie

Makers Pvt. Ltd. Company Appeal (AT) (Ins) No. 359 of 2019 held that the

Adjudicating Authority has a duty to inquire as to whether the debt is

payable in law or in fact. There is no statutory presumption in favour of

Company Appeal (AT) (Ins) No. 97 of 2020 9

a Financial Creditor, whereby, on a mere presentation of an Application

under Section 7 of the I&B Code, the CIRP can be initiated. In the present

case, the Appellant has failed to satisfy the Adjudicating Authority about

the existence of financial debt, date of disbursement and so also date of

default. Therefore, the Appeal is liable to be dismissed.

15. After hearing Learned Counsel for the parties we have perused the

record, following issues are crop up for our consideration.

(i) Whether the agreement to sell is not a reciprocal or

contingent contract?

(ii) Whether the differential amount between the pre-

launch price and buy back price amounting to Rs.

29,05,73,965/- is a financial debt under Section 5(8) (g)

of the I&B Code?

(iii) Whether the Adjudicating Authority cannot consider

the disbursement and the quantum of the debt?

Issue No. 1

Whether the agreement to sell is not a reciprocal or contingent

contract?

16. The Appellant and the Respondent entered into agreement to sell

on 03.04.2015, this is an admitted document. According to the Appellant

as per clause 4 of the agreement the Appellant paid Rs. 5 lacs and under

clause 9 of the agreement acquired the absolute right to assign, sell,

dispose off or alienate the saleable area to any 3rd party at any price.

According to the Appellant the clauses 9 and 10th of the agreement have

Company Appeal (AT) (Ins) No. 97 of 2020 10

overriding effect on clause 2 of the agreement that to purchase saleable

area @ of Rs. 3,000 per sq. ft. and the agreement stipulates two options

'A' the right but not the obligation to buy saleable area at a pre-launch

price of Rs. 3,000 per sq. ft. and option 'B' the right but not the obligation

to sell back the saleable area to the Respondent @ of Rs. 4,535/- per sq.

ft. The Appellant opted option 'B'. Thus, the Appellant has no obligation

under the agreement.

17. we have examined the terms and conditions of the agreement to

know the intention of the parties. When we read the agreement as a

whole it is manifestly clear that the agreement is a buy back agreement.

Buy back means first the Appellant buy the saleable area as per clause 2

of the agreement and pay price as per clause 4 and 5 then the Respondent

shall buy back the saleable area as per clause 6. The Respondent assured

the Appellant that Respondent will repurchase the entire saleable area at

a higher price of Rs. 1,535/- per sq. ft. i.e. assured return amounting to

Rs. 29,05,73,965/-. For securing this amount the Respondent issued

three cheques in favour of the Appellant.

18. We are unable to convince with the argument of the learned

counsel for the Appellant that after payment of Rs. 5 lacs the Appellant

acquired the absolute right to assign, sell, alienate the saleable area to

any 3rd party to any price. This agreement does not stipulate two options

that without paying the balance price as per clause 5 the Appellant

acquired the right to sell back the saleable area to the Respondent @ of

Rs. 4535/- per sq. ft. it cannot be said that clauses 9 and 10 have

Company Appeal (AT) (Ins) No. 97 of 2020 11

overriding effect on such a manner that clause No. 2, 3 and 5 became

redundant. Thus, we hold that the agreement consists of reciprocal

promises and the Appellant has not fulfilled his obligation under the

agreement.

Issue No. 2

Whether the differential amount Rs. 29,05,73,965/- is a

financial debt?

19. In the Application, the Appellant has shown financial debt Rs.

29,05,73,965/-, however, the Appellant has not disclosed the date of

disbursement of the amount and the date of default.

20. According to the Appellant, the Respondent has issued three

cheques for the amount of Rs. 29,05,73,965/-, and acknowledged the

debt in letters dated 22.02.2017 and 07.02.2019. Thus, this amount is

financial debt. To show that there is a debt due which was disbursed

against the consideration for time value of money, it is not necessary to

show that an amount has been disbursed to the Corporate Debtor. A

person can show that the disbursement has been made against the

consideration for time value of money through any instrument. Thus,

a financial debt arose out of a derivative transaction benefiting from

fluctuation in the market price, hence, this amount is financial debt

under Section 5(8) (g) of the I&B Code. For this purpose, cited the

Judgment of this Appellate Tribunal in the Case of Dr. BVS Lakshmi

(Supra)

Company Appeal (AT) (Ins) No. 97 of 2020 12

21. We have considered the submissions of Learned Counsel for the

Appellant in the light of the Judgment of this Appellate Tribunal in the

case of Dr. B.V.S Lakshmi (Supra) in para 29 of this Tribunal held as

under:-

"For coming within the definition of financial debt as defined under sub-section (8) of section 5, the claimant is required to show that there is a debt alongwith interest, if any which has been disbursement and such disbursement has been made against the consideration for the time value of money. Thereby, if the claimant claims to be Financial Creditor he will have to show that debt is due which he has disbursed against the consideration for the time value of money and that the borrower has raised the amount directly or through other modes like credit facility or its dematerialised equivalent, note purchase facility or the issue of bonds, notes debentures, loan stock or any other similar instrument. The amount of any liability in respect of any lease or higher purchase contract which is deemed as a finance or capital lease under the Indian Accounting Standards or such other Accounting Standards can also be referred to buy the creditor to claim that there is a financial debt due even which has been disbursed against the consideration for the time value of the money. "To show that there is debt due which was disbursed against the consideration for the time value of money, it is not necessary to show that an amount has been disbursed to the Corporate Debtor. A person can show that the disbursement has been made against the consideration for the time value of money through any instrument. For example, for any derivative transaction entered into in connection with protection against or benefit from fluctuation if any rate or price and for calculating the value of any derivative transaction for which only the market value of such transaction shall be taken into account, it is not necessary to show that amount has been disbursed. The disbursement against the consideration for the time value of money is the main factor."

22. In the present case, the Appellant has failed to bring on record any

evidence to suggest that he disbursed Rs. 29,05,73,965/- to the

Respondent which has been made against the consideration for the time

Company Appeal (AT) (Ins) No. 97 of 2020 13

value of money. In the agreement, there is no such term or condition to

infer that the transaction in question may be a derivative transaction.

Thus, it cannot be held that the transaction is a financial debt as defined

under Section 5 (8) (g) of the I&B Code. Admittedly, this is buy back

transaction and as contemplated by Section 5 (8) (f) may or may not be

regarded as financial transaction for this purpose, we would like to refer

the decision of this Appellate Tribunal in Nikhil Mehta and Sons (HUF)

Vs. AMR Infrastructure Ltd. C.A. (AT) (Ins) No. 7/2017 in which vide

notice sub-Section (8) of Section 5 of the I&B Code observed: -

"17. The first question arises for consideration is as to who is a 'Financial Creditor'. Learned Adjudicating Authority, for determination of the aforesaid issue examined the definition provided in Section 5 (7) and 5(8) and in the impugned judgement rightly observed: - "12. A perusal of definition of expression 'Financial Creditor' would show that it refers to a person to whom a Financial debt is owed and includes even a person to whom such debt has been legally assigned or transferred to. In order to understand the expression 'Financial Creditor', the requirements of expression 'financial debt' have to be satisfied which is defined in Section 5(8) of the IBC. The opening words of the definition clause would indicate that a financial debt is a debt along with interest which is disbursed against the consideration for the time value of money and it may include any of the events enumerated in sub-clauses (a) to (i). Therefore, the first essential requirement of financial debt has to be met viz. that the debt is disbursed against the consideration for the time value of money and which may include the events enumerated in various sub-clauses. A Financial Creditor is a person who has right to a financial debt. The key feature of financial transaction as postulated by section 5(8) is its consideration for time value of money. In other words, the legislature has included such financial transactions in the definition of 'Financial debt' which are usually for a sum of money received today to be paid for over a period of time in a single or series of payments in future. It may also be a sum of money invested today to be repaid over a period of time in a single or series of instalments to be paid in future. In Black's Law Dictionary (9th edition) the expression 'Time

Company Appeal (AT) (Ins) No. 97 of 2020 14

Value' has been defined to mean "the price associated with the length of time that an investor must wait until an investment matures or the related income is earned". In both the cases, the inflows and outflows are distanced by time and there is a compensation for time value of money. It is significant to notice that in order to satisfy the requirement of this provision, the financial transaction should be in the nature of debt and no equity has been implied by the opening words of Section 5(8) of the IBC. It is true that there are complex financial instruments which may not provide a happy situation to decipher the true nature and meaning of a transaction. It is pertinent to point out that the concept 'Financial Debt' as envisaged under Section 5(8) of the IBC is distinctly different than the one prevalent in England as provided in its Insolvency Act, 1986 and the 'Rules' framed thereunder. It appears that in England there is no exclusive element of disbursement of debt laced with the consideration for the time value of money. However, forward sale or purchase agreement as contemplated by Section-5 (8)(f) may or may not be regarded as a financial transaction. A forward contract to sell product at the end of a specified period is not a financial contract. It is essentially a contract for sale of specified goods. It is true that some time financial transactions seemingly restructured as sale and repurchase. Any repurchase and reverse repo transaction are sometimes used as devices for raising money. In a transaction of this nature an entity may require liquidity against an asset and the financer in return sell it back by way of a forward contract. The difference between the two prices would imply the rate of return to the financer." (See Taxman's Law Relating to IBC, 2016.) (Emphasis supplied)

23. In the present case, the Appellant has not fulfilled his obligation

under the agreement, therefore, the amount claimed cannot be termed as

financial debt as defined under Section 5(8)(f) of the I&B Code.

24. Now, we have considered the letters dated 22.02.2017 and

07.02.2019. The Respondent had issued a cheque amounting to Rs.

9,01,76,645/- and vide letter dated 22.02.2017 sent to the Appellant.

Thereafter, on 07.02.2019 the Respondent sent a letter to the Appellant

Company Appeal (AT) (Ins) No. 97 of 2020 15

stating that the Respondent had issued three cheques towards

compensation for surrender of right of purchase of the Appellant.

25. Bare reading of this letter it is clear that the Respondent has issued

three cheques towards the compensation for surrender of right of

purchase amounting to Rs. 29,05,73,965/-. This amount was not

disbursed against the consideration for the time value of money.

Therefore, cannot be considered as a financial debt as defined under

Section 5 (8) of the I&B Code.

26. There is no quarrel with the proposition as held by this Appellate

Tribunal in the case of Ranveer Ranjit (Supra) that once the Financial

Creditor is able to satisfy the Adjudicating Authority that there is a debt

payable in law and a default on the part of the Corporate Debtor, whether

from record of default recorded with the information utility or other

evidence, the Adjudicating Authority is left with no option but to admit

the Application under Section 7 of the I&B Code. In the present Case, the

Appellant has failed to satisfy the Adjudicating Authority that there is a

financial debt payable in law or in fact and also failed to satisfy a default

on the part of the Respondent (Corporate Debtor).

27. This Appellate Tribunal in the case of Anil Kumar Vs. Rakesh CA

(AT) (Ins) No. 35 of 2019 held that if an allottee does not pay the full

amount, cannot allege default on the part of the Corporate Debtor. We

can say with this analogy that if the Financial Creditor under the buyback

agreement does not pay the full agreed consideration to the Corporate

Debtor cannot allege default on the part of the Corporate Debtor.

Company Appeal (AT) (Ins) No. 97 of 2020 16 Issue No. 3

Whether the Adjudicating Authority cannot consider the

disbursement and the quantum of debt?

28. Learned Counsel for the Appellant cited the Judgment of this

Appellate Tribunal in the case of Dr. BVS Lakshmi (Supra) and submitted

that it is not necessary to show that an amount has been disbursed to

the Corporate Debtor.

29. In the case of Dr. BVS Lakshmi (Supra) in para 29 (Please see Para

21 of the Judgment) it is held that disbursement of the amount is not

necessarily made to the Corporate Debtor but it may be shown that the

disbursement has been made against the consideration for the time value

of money through any instrument. It is also held that the disbursement

against the consideration for the time value of money is main factor.

Thus, the observations made in aforesaid Judgment is not helpful to the

Appellant.

30. Learned Counsel for the Appellant placed reliance on the

observations made by this Appellate Tribunal in the case of Gouri Prasad

Gowenka (Supra) in which it is held that "in so far as joining of issue by

the Corporate Debtor qua the quantum of payable debt is concerned,

same does not fall for consideration of the Adjudicating Authority at the

stage of admission of the Application under Section 7 of the I&B Code."

31. In Gouri Prasad Goenka's case: - there was no controversy as

regards facts qua advancement of loan and allied financial facilities to the

Corporate Debtor falling within the purview of the financial debt, the

Company Appeal (AT) (Ins) No. 97 of 2020 17

status of parties before the Adjudicating Authority as Financial Creditor

and Corporate Debtor besides the admitted position as regards default in

clearing the outstanding amount of debt, which according to the

Financial Creditor stood at Rs. 273,09,68,793/- as on 31.03.2018. In the

instant case, it is not admitted fact that the amount claimed in the

Application under Section 7 of the I&B Code is a financial debt and the

Respondent committed default. The Adjudicating Authority has not

decided the quantum of payable debt. Thus, the finding of Gouri Prasad

Goenka (Supra) case is not helpful to the Appellant.

32. With the aforesaid, the Appellant is miserably failed to prove that

any financial debt is due and payable in law or in fact and the Respondent

committed the default. We agree with the findings of the Learned

Adjudicating Authority and affirmed the impugned order.

Accordingly, the Appeal is dismissed. However, no order as to

costs.

[Justice Jarat Kumar Jain] Member (Judicial)

[Balvinder Singh] Member (Technical)

[V.P.Singh] Member (Technical)

New Delhi 24th November, 2020.

SC

Company Appeal (AT) (Ins) No. 97 of 2020