Back
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
S.J. MUKHOPADHAYA, CHAIRPERSON, BANSI LAL BHAT, MEMBER(JUDICIAL)
IN THE MATTER OF :
Mr. Pradeep Dayanand Kothari - Appellant
Versus
A. Pandian & Anr. - Respondents
Company Appeal (AT) (Insolvency) No. 11 of 2018
Decided On : 07-02-2018
ORDER :
This appeal has been preferred by Mr. Pradip Dayanand Kothari, Director of M/s. Kothari Industrial Corporation Limited against order dated 19th December, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Chennai Bench, Chennai in Company Petition No. 649/(IB)/CB/2017, whereby and whereunder application preferred by 1st Respondent- Mr. A. Pandian under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “I&B Code”) has been admitted, order of moratorium has been passed and an ‘Interim Resolution Professional’ has been appointed.
2. Learned counsel appearing on behalf of the Appellant submits that the 1st Respondent-Mr. A. Pandian is not a ‘Financial Creditor’ as he does not come within the meaning of ‘Financial Creditor’ as defined in sub-section (7) of Section 5 of the ‘I&B Code’ read with sub-section (8) of Section 5 of the ‘I&B Code’.
3. Learned counsel for the Appellant placed reliance on demand notice dated 19th April, 2017 given by Mr. A. Pandian under sub-section (1) of Section 8 of the ‘I&B Code’, whereby the Respondents demanded a sum of Rs. 68,61,012/- (Rupees Sixty-Eight Lakh Sixty-One Thousand and Twelve only) as due amount of ‘Operational Debt’ purported to have been defaulted by M/s. Kothari Industrial Corporation Limited (‘Corporate Debtor’), the relevant portion of which reads as follows:-
“PARTICULARS OF OPERATIONAL DEBT
| 1. | TOTAL AMOUNT OF DEBT
DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE
AND THE DATE FROM WHICH SUCH DEBT FELL DUE | Rs.68,61,012/-(Rupees Sixty Eight Lakhs Sixty One Thousand and Twelve only)
1. The operational creditor is in the business of fertilizers and possesses an excellent reputation in the market. He has maintained a healthy balance sheet throughout, that he has accumulated over a period of time through his sheer hard work and business acumen.
2. In the course of his business, on several occasions, the corporate debtor had approached the operational creditor stating that they required short term loans for the purpose of trading operations in Rock and Super Phosphate. That based on the assurances and representations of the corporate debtor, the operational creditor had advanced several short term loans between 04.01.2013 to 19.06.2014 repayable with interest.
3. After giving due credit to the amounts received by the corporate debtor, there arose a total due of Rs. 49,20,305/- payable to the operational creditor as on 31.12.2014. several reminders had been made to the corporate debtor and the same were answered with a plea for further time to make payments. In fact, vide letter dated 07.03.2014 issued by the corporate debtor to the operational creditor, they had admitted that the debt of Rs. 44,00,000/- (Rupees forty four lakhs only) was payable to the operational creditor and promised to clear all the dues along with interest as soon as possible. In spite of several requests, reminders and admissions the corporate debtor had not made any payments for several months and did not honor their commitment.
4. Thereafter towards discharge of the abovementioned liability, the corporate debtor had issued two cheques bearing Nos.437421 and 437422 dated 30.09.2014 for a sum of Rs. 28,00,000/- and Rs. 16,14,210/- (totalling to Rs. 44,14,210/-) respectively both drawn on M/s. Axis Bank Ltd., Mylapore Branch, Chennai. That when the cheques were presented on 23.12.2014, the same were returned on the same day citing reasons ‘Funds Insufficient’.
5. It is further understood through reliable sources that the substratum of the company has been e |
The main legal point established in the judgment is the binding effect of the settlement between the parties, the waiver of the right to seek re-employment by the workmen, and the entitlement of the ....
A lockout is justified if it is declared in response to an illegal strike or a strike that is in breach of a settlement or award.
The combination of eyewitness testimonies, recovery of the weapon used, and forensic examination results can establish guilt in criminal cases, even based on circumstantial evidence.
The conviction of an accused person under Section 27(3) of the Arms Act is not permissible in law if the accused is also charged with committing murder under Section 302 of the Indian Penal Code.
The court can enhance compensation based on the deceased's income and family dependency, and adjust the multiplier used by the Tribunal if found unjustified.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
