Cause Title : Meghna Devang Juthani Vs Ambe Securities Private Limited, National Company Law Tribunal, Mumbai, CP (IB) No. 974/MB-VI/2020
Date of Judgment/Order : 18.12.2023
Corum : Hon’ble Shri K. R. Saji Kumar, Member (Judicial) Hon’ble Shri Sanjiv Dutt, Member (Technical)
Citied:
- Carnoustie Management India Pvt. Ltd. Vs. CBS International Projects Private Limited, NCLT
- Swiss Ribbons Pvt. Ltd. & Anr vs. Union of India & Ors. (2019)
- Sanjay Kewalramani vs Sunil Parmanand Kewalramani & Ors. (2018)
- Pawan Kumar vs. Utsav Securities Pvt Ltd 2021
Background
Application was filed under section 7 of the Insolvency and Bankruptcy Code, 2016 alleging loan of Rs, 1.70 cr is due. The Applicate identified herself as the widow and heir of the lender but could not produce any documents proving financial contract between her Late husband and the CD but claimed that the CD has accepted that money was received from her husband. The applicant subsequently filed rejoinder claiming the debt to an 'operational debt' and not a financial one.
The CD said that it was franchiser of registered brokers in dealing in commodity, derivatives and contracts. The money given by the late husband was for investment in Futures and Options of stocks and commodities through the CD and not a loan. The said money was deployed on behalf of the late husband through the registered broker and therefore was neither a financial nor an operational debt.
Judgment
In view of these facts, it is important to emphasize that while a written contract is not an absolute prerequisite for establishing the existence of a financial debt, the Adjudicating Authority must ascertain that the initiation of CIRP is not done in mala fide and is genuinely aimed at resolving insolvency. In the current case, there is insufficient evidence to support the acceptance or admission of the current application.
The NCLT further observed that presence of a loan agreement along with pertinent documents is imperative to substantiate the existence of a financial debt.
Comments
Post a Comment