Company Appeal (AT) (Insolvency) No. 549 of 2020 1 of 12

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency) No. 549 of 2020

[Arising out of Impugned Order dated 12^th March 2020 passed by the

Adjudicating Authority/National Company Law Tribunal, Kolkata Bench,

Kolkata in Company Petition (IB) No.188/KB/2019]

IN THE MATTER OF:

1.

Narendra Kumar Agarwal

391 Block-G

New Alipore

Kolkata – 700053

Appellant No.1

2.

Suman Agarwal

391 Block-G

New Alipore

Kolkata – 700053

Appellant No.2

Versus

1.

Monotrone Leasing Private Limited

Oriental House

6C, Elgin Road

Kolkata – 700020

Respondent No.1

2.

Bimal Kanti Chowdhry IRP

77A/50 Raja S.C. Mullick Road

8, SPB Block

Kolkata – 700020

Respondent No.2

Present:

For Appellant

: Mr Abhijeet Sinha, Ms Suhita Mukhopadhyay and

Mr Abhirup Chatterjee, Advocates.

For Respondent

: Mr Charu Tyagi, Advocate

Mr Bimal Kanti Choudhary, Advocate for (R-2 RP)

Mr Rishav Banerjee, Advocate for R-2.

Mr Sanjay Kapur, Mr. VM Kannan and

Ms Megha Karnwal, for SBI.

J U D G M E N T

[Per; V. P. Singh, Member (T)]

This Appeal emanates from the Impugned Order dated 12^th March 2020

passed by the Adjudicating Authority/National Company Law Tribunal,

Company Appeal (AT) (Insolvency) No. 549 of 2020 2 of 12

Kolkata Bench, Kolkata in Company Petition (IB) No. 188/KB/2019, whereby

the Adjudicating Authority has admitted the Application under Section 7 of

the Insolvency and Bankruptcy Code, 2016 (in short 'I&B Code'). The Parties

are represented by their original status in the Company Petition for the sake

of convenience.

2.

These brief facts of the case as per petitioner are as follows:

The Applicant/Respondent granted an inter-corporate loan of Rs.25

lacs for 90 days to the Corporate Debtor, which was repayable with 15%

interest per annum. The Applicant remitted the said amount by transferring

the fund to the corporate debtor acknowledged by the corporate debtor. The

Corporate Debtor duly paid an aggregate of Rs.2,69,075/- from 14^th June

2017 to 31^st March 2018. Since 01^st April 2018, the Corporate Debtor failed

and neglected to pay the outstanding loan amount. Thereupon the

Applicant/Financial Creditor raised the demand. In response to that, the

Corporate Debtor issued two cheques bearing No.806211 drawn on HDFC

Bank dated 11^th June 2018 for Rs.25 lacs and Cheque No.806210 drawn on

HDFC Bank. But the Bank dishonoured both the cheques. The Applicant

contends that the Corporate Debtor has committed default as on 20^th January

2018 for a sum of Rs.28,03,083/- which includes the principal and interest.

3.

The Adjudicating Authority admitted the petition by its order dated 12^th

March 2020, which is under challenge in this Appeal. The Appeal is filed

mainly on the ground that;

Company Appeal (AT) (Insolvency) No. 549 of 2020 3 of 12



"the Financial Creditor has failed to show that it had

necessary Board approval before the disbursement of the

alleged loan.



the Financial Creditor has failed to establish any financial

contract between the parties. The oral agreement and

payment of TDS cannot be taken as proof of financial debt.



the alleged oral contract does not establish debt; the same

would be like the inter-corporate deposit, which is distinct

from a loan and would not fall within the definition of

financial debt.



the Financial Creditor has failed to make out a case of

default. In the absence of default, no application under

Section 7 can be admitted. The date of default is crucial to

determine the date on which the cause of action accrued.



A bare reading of Form-I shows that no date of default has

b