Sanjoy Ghosh vs Impex India Inc. & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 560 of 2019
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on the following propositions, taken in the order the order takes them: Where a corporate debtor asserts that a loan given to it by a financial creditor is a friendly loan not repayable on demand, the assertion cannot be accepted unless the corporate debtor brings on record evidence of the friendly character of the loan; absent any relationship between the parties beyond the lending transaction and absent such evidence, the claim of a non-repayable friendly loan fails. Where a loan is advanced under a dated instrument and a part of the principal remains unpaid, the default in payment of that unpaid portion is established, and a default in payment of a debt exceeding the threshold amount is a sufficient ground for an application under section 7 of the Insolvency and Bankruptcy Code, 2016 to be admitted, the corporate debtor's contention that the loan had not matured being rejected in the absence of any term of the loan that postpones repayment. Where the financial creditor concedes receipt of a part of the amount and the corporate debtor does not dispute that the balance exceeding the threshold remains unpaid, that undisputed default is sufficient to sustain the admission order, and no ground for interference with the Adjudicating Authority's order exists.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Mr. Sanjoy Ghosh ...Appellant Versus Impex India Inc. & Anr. ...Respondents
Present: For Appellant : Mr. Mani Bhushan Sinha, Mr. Pranab Prakash and Mr. Sunil Kumar, Advocates
ORDER
31.05.2019 The Respondent - 'Impex India Inc.' (Financial Creditor)
filed an application u/s 7 of the 'Insolvency and Bankruptcy Code, 2016
against 'Seajaan Logistics Pvt. Ltd.', which has been admitted by the
Adjudicating Authority (National Company Law Tribunal), Kolkata Bench,
Kolkata by order dated 4th April, 2019. Learned counsel appearing on behalf
of the Director of the 'Corporate Debtor' submits that the loan given has not
matured and before that it cannot be held to be defaulted. Further, it is
submitted that it is a friendly loan given by the 'Impex India Inc.' to the
'Corporate Debtor'.
2. However, the aforesaid submission cannot be accepted in absence of
any relationship between the 'Impex India Inc.' (Financial Creditor) and
'Seajaan Logistics Private Ltd.' (Corporate Debtor) and the 'Corporate Debtor'
has failed to bring on record any evidence to show that it was a friendly loan
and not to be refunded. So far as the maturity of the loan is concerned,
admittedly, the loan have been taken on 15th November, 2015 vide cheque No.
002334. As the loan amount is Rs. 15 Lakhs and the part amount has not 2
been paid, the Adjudicating Authority rightly held that the 'Corporate Debtor'
defaulted in paying the 'debt', which was more than Rs. 1 Lakh.
3. As pleaded that the 'Financial Creditor' has admitted that they have
received the amount of Rs. 11,60,000/- but it was not disputed that the rest
of the amount, which is more than Rs. 1 Lakh, has not been paid.
4. In view of the undisputed fact, we find no ground to interfere with the
impugned order. The appeal is dismissed. No costs.
[Justice S.J. Mukhopadhaya] Chairperson
[ Justice A.I.S. Cheema ] Member (Judicial)
[ Kanthi Narahari ] Member (Technical) /ns/gc
Company Appeal (AT) (Insolvency) No. 560 of 2019
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