NCLT JUDGEMENT ON SECTION 5(8), 7, 9, 10, 12(A), 60(5) OF THE INSOLVENCY AND BANKRUPTCY CODE, 2016 AND REGULATION 30(A)(4), 30(A)(5) INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INSOLVENCY RESOLUTION PROCESS FOR CORPORATE PERSONS) REGULATIONS, 2016

  

NAME		MOBILE NO.	E-MAIL I’D
RANJEET KUMAR		8383098478, 9667769795	rk@courtkutchehry.com
JAI THAKUR		8130703334, 9355723300	jai.thakur@courtkutchehry.com
RAJEEV RANJAN		9334553249	rajiv.ranjan@courtkutchehry.com
ASHOK MISHRA		9718327746	sales@courtkutchehry.com
RAVI KUMAR			ravi.singh@courtkutchehry.com

Piyush Patel Vs. Sunil Kumar Agarwal (Irp) And Ors, (2020) 07 NCLT CK 0069

NCLT allowed the application filed by the Applicant, under section 60(5) of the IB Code. While allowing the application NCLT held that "By relying on the Judgments of this Appellate Tribunal, we are of the view that the Appellant, who claims to be a Financial Creditor, however, claims made by it, is not a Financial Debt, it is reiterated that in the marketing agreements and subsequent correspondent exchanged between the Appellant and the Respondent, no way it is mentioned that the amount paid by the Appellant to be repayable along with interest over a period of time in a single or series of payments in future. However, we are of the firm opinion that the Appellant has not disbursed money against the consideration for the time value. Accordingly, we hold that the claim of the Appellant is not a Financial Debt within the meaning of Section 5(8) of IBC. " NCLT further held that "The first order objective is "resolution". The second order objective is "maximisation of value of assets of the "Corporate Debtor" and the third order objective is "promoting entrepreneurship, availability of credit and balancing the interest". This order of objective is sacrosanct. Thus, when the Company is sound and going concern and looking to the object of the IB Code, it would not be prudent to bring the Company under liquidation for some vested interest. Under the facts and circumstances as narrated herein above in sequel, the status of the Respondent No. 2 cannot be taken as Financial Creditor. Hence, the COC so constituted by the RP is void ab initio. Further, the Operational Creditor have liberty to file his application through RP and RP shall make all endeavour to file Form F.A., so filed by the Operational Creditor for withdrawal of the CIRP before this Adjudicating Authority. Accordingly, the instant Application is allowed with the above observations