Karina Healthcare Private Limited vs Hn Reacon Private Limited

Karina Healthcare Pvt. Ltd. ...Appellant

Versus

H N Reacon Pvt. Ltd. ...Respondents

Present: For Appellant: Mr. Yashoaj Guglani, Advocate For Respondent: Mr. Subhanshu Sharma, C.S.

ORDER

21.07.2023: Heard Learned Counsel for Appellant and Respondent-C.S.

Shree Subhanshu Sharma.

2. This Appeal has been filed against the Order dated 28th November, 2022

by which order the Adjudicating Authority has rejected Section 7 Application

filed by the Appellant. Aggrieved by the said order, the Appellant has come up

in the Appeal.

3. Learned Counsel for the Appellant submits that the Appellant had filed

documents to prove the disbursement of the loan and the amount is still

balance for payment. It is submitted that the Adjudicating Authority

committed error in rejecting Section 7 Application on spacious ground that

ledger and the bank statement do not tally whereas said observations were not

correct since there was no discrepancies between the Bank Statement and the

Ledger Account. It is further submitted that the Corporate Debtor has also

filed Reply before the NCLT in which reply, they admitted that amount of Rs. -2-

4.29 Crores is still pending and debt and default being admitted, the

Adjudicating Authority ought to have admitted the Section 7 Application.

4. Company Secretary appearing for the Respondent submits that

Company's situation was not financially good hence the payment could not be

made however the loan is not denied and the repayments were also made of

Rs. 4.10 Lakh and Rs. 2 Lakh in August, 2015.

5. We have considered the submissions of Learned Counsel and Company

Secretary for the parties and have perused the record.

6. Section 7 Application was filed by the Financial Creditor with the case

that loan was given to the Corporate Debtor for an amount of Rs. 9.41 crores

out of which Rs. 5.12 Crores was paid in the year 2013-14 and the amount of

Rs. 4.29 was pending. In the Part-IV of the Section 7 Application, the said

amount was claimed on the basis of which the CIRP was sought to be initiated.

7. The Adjudicating Authority in its Order has rejected Section 7

Application observing that ledger account and the bank statement do not tally.

Observations have been made by the Adjudicating Authority in paragraph 9

and 10 and conclusions in para 20 of the order of Adjudicating Authority are

recorded which are to the following effect:

"20. Accordingly, this Bench conclude that:

(a) The Bank Statement produced and relied by the Applicant is inconsistent with its Ledger Account;

(b) The alleged debt was not disbursed qua the loan agreement dated 17.12.2021 annexed by the Applicant;

Company Appeal (AT) (Insolvency) No. 450/2023 -3-

(c) There is nothing on record pertaining to the disbursement period that the amount was disbursed as Loan;

(d) Also, there is nothing on record to depict that the Applicant was eligible to grant loan to the Respondent in terms of Section 186 of Companies Act, 2013; and

(e) The Applicant has concealed that Sh. Sh. Rabinder Singh (DIN: 06520376) was having control over both the Applicant and the Respondent Company during the period of transaction."

8. The observation of the Adjudicating Authority that amount of Rs. 4.10

lac was received from Harvansh and not from the Corporate Debtor is not a

correct observation. The Bank Statement has been placed on record by the

Corporate Debtor which indicate that on 24th August, 2015 by transfer Rs.

4.10 Lac was received by the Financial Creditor and on the same day the said

amount of Rs. 4.10 Lac was transferred to one Mr. Harvansh. The two entries

are separate entries in the Bank Statement and tallies with the Ledger Account

which indicate that Rs. 4.10 Lac was credited in the Account of the Financial

Creditor. Thus the basis of the order of the Adjudicating Authority rejecting

Section 7 Application is unfounded. As far as observation of the Adjudicating

Authority that the agreement dated 17.12.2021 can not be said to be Loan

Agreement the said observation is also not correct since Agreement dated

17.12.2021 was a settlement agreement under which the Corporate Debtor

agreed to settle the dues of Rs. 4,29,34,267/- for Rs. 3 Crores. The Settlement

Agreement has also been brought on record which clearly indicate that lender

has granted the loan to the Corporate Debtor and the Agreement dated Company Appeal (AT) (Insolvency) No. 450/2023 -4-

17.12.2021 was only settlement and there was no case that it is a loan

agreement.

9. We may further notice the Reply of Corporate Debtor which has been

brought on record at page 170 in paragraph 2 of the Reply where following has

been stated:

"That M/s. H.N Reacon had taken et loan of Rs. 9.41 cr during Financial Year 2012-13 from M/s. Karina Healthcare Pvt. Ltd. out of which Rs. 5.12 Cr of Loan was repaid in year 2013 and 2014. Hence net loan of Rs. 4.29 cr was pending payable to M/s. Karina Healthcare Pvt. Ltd."

10. Debt and Default being admitted, the Adjudicating Authority ought to

have admitted Section 7 Application in view of the law laid down in

"Innoventive Industries Pvt. Ltd. Vs. ICICI Bank & Anr." (2018 1 SCC

407). We thus are of the view that order passed by the Adjudicating Authority

is not sustainable in law and is hereby set aside. We direct the Adjudicating

Authority to pass an order of admission of Section 7 Application within 30

days from the date copy of this order is produced and thereafter proceed in

accordance with law.

The Appeal is allowed, accordingly.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical) Basant/nn Company Appeal (AT) (Insolvency) No. 450/2023