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Prakash Kumar Raj vs Shriram City Union Finance Limited

National Company Law Appellate Tribunal6 February 2024Ashok Bhushan

Ratio decidendi

The rule this decision rests on

The payment of instalments by the corporate debtor under a loan is itself evidence of the existence of a financial debt, and a subsequent dispute by the corporate debtor founded on alleged fraud in inducing the loan or on pending police complaints against the financial creditor and developer does not negate the financial debt or the default for the purposes of an application under Section 7 of the Insolvency and Bankruptcy Code, 2016. A claim the corporate debtor may have against the financial creditor or a third party does not, by its mere existence, affect the admission of a Section 7 application where debt and default are shown; such claims are left open to be pursued in separate proceedings. A discretionary power of the Adjudicating Authority to reject a Section 7 application, as referred to in Vidarbha Industries Power Ltd. v. Axis Bank Ltd., is not attracted where the facts of the case differ from those of that decision, and the Supreme Court's ruling there does not govern a case on different facts.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No.1706 of 2023IN THE MATTER OF:

Prakash Kumar Raj (Suspended) Director. Mountain Edge Tours ...Appellant

Versus

Shriram City Union Finance Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Siddhesh Shirish Kotwal, Ms. Ana Upadhyay, Ms. Manya Hasija and Mr. Tejasvi Gupta, Advocates. For Respondents:

ORDER

(Hybrid Mode)

06.02.2024: Heard learned counsel for the Appellant. This Appeal has

been filed against order dated 10.11.2023 by which the Adjudicating Authority

has admitted Section 7 application filed by the Respondent.

2. Learned counsel for the Appellant submits that although initially the

Corporate Debtor started paying EMI, later it realized that some fraud has

been played in inducing the Corporate Debtor to take loan and police

complaints were filed against the Financial Creditor and the Developer. The

Adjudicating Authority has given finding the debt and default is proved, in this

regard the submission of the Appellant is that the debt and default could not

be held to be proved since it is disputed by the Appellant.

3. We have heard the learned counsel for the Appellant and perused the

record.

Cont'd.../ -2-

4. It was proceedings under Section 7 and the fact that Appellant started

paying EMI itself proves that there was financial debt. The reason for not

continuing to pay EMI and reason for filing police complaint cannot negate the

financial debt or default. With regard to claim of the Appellant against the

Financial Creditor and the Developer, it is always open for the Appellant to

pursue such claim but it shall not have any impact on the Section 7

application which has been admitted by the Adjudicating Authority there being

debt and default. We are of the view that no error has been committed by the

Adjudicating Authority in admitting Section 7 application.

5. Learned counsel for the Appellant placing reliance on the judgment of

Hon'ble Supreme Court in "Vidarbha Industries Power Ltd. vs. Axis Bank Ltd.,

Civil Appeal No.4633 of 2021" submits that the Adjudicating Authority has

discretionary power, which should have been used in rejecting the application.

We are of the view that the judgment of Hon'ble Supreme Court in Vidarbha

was on its own facts and the said judgment does not apply in the present case.

6. We do not find any merit in the Appeal. Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.1706 of 2023

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