Page 31 - IBC Orders us 7-CA Mukesh Mohan

Order Passed Under Sec 7
Hon’ble NCLT Principal Bench

accrued interest. However, from the copy of TD S return filed with the application it is seen that the

corporate debtor had deducted TD S on interest and deposited the same with the Income Tax Department
for the period commencing from 31.12.2013 to 30.09.2014. Subsequently, there has been default in
deducting TICS and depositing the same with Income Tax Department. The applicant has stated that this

default was notified vide letters dated 22.09.2015, 23.09.2015 and 5.10.2015, but no response was
received from the Corporate debtor.

4. The financial creditor issued legal notice dated 03.12.2016 but the same has not been replied to.
In view of the above facts, the financial creditor has submitted that the corporate debtor is unable to pay

its debt and is liable to be declared insolvent. The application under section 7 of IBC has been filed in the
prescribed form. The amount of Rs. 2.25 crores is claimed to be the defunct amount. It is stated that an
insolvency petition no. 6/2017 filed by the financial creditor before the NCLT had been rejected vide

interim order dated 06.03.2017 stating that the petition was incomplete as no insolvency professional had
been nominated. Thus, the present insolvency petition has been filed. However, it is seen that again no
insolvency professional had been proposed.

5. The 'corporate debtor' has opposed the instant petition. While acknowledging that an amount of
Rs. 2.25 crores was paid to R-1 in December 2013 and January 2014, it is stated by the respondents 1 to 3

in their written submission that the petitioner promoters has further advanced loan Rs. 5 crores to R-1,
Director / Promoters in June 2014. It is stated that the payment of the same was towards the purchase of
the properties of the family of respondent no.-2, being D-33 Kaushmbhi for consideration of Rs.

3,32,00,000 and R-8/23 Raj Nagar, Ghaziabad for consideration of Rs. 5,80,00,000 which were handed
over to the `financial creditor', Against these consideration, only a sum of Rs. 2,25,00,000 and

5,00,00,000 were paid and the rest of the amount remain unpaid. In support of the averments copies of the
sale deeds of these properties have been filed. It is the case of the corporate debtor that there is no default
on their part and in fact the financial creditor has to repay them a sum of Rs. 4.25 crores.

6. After going through the sale deeds and other documents filed by the Corporate Debtor, it is seen
that there is no privity- of contract between the petitioner and the respondent with regard to the property

transactions between the petitioner and family of respondent-2. The Corporate debtor in this case is a Pvt.
Ltd. Company and the above-mentioned property transactions are not accompanied by Board Resolution
of the respondent company authorising the individual director to enter into the transaction on behalf of the

respondent company. Thus, these transactions cannot be cited for adjustment of the outstanding debt of
the corporate debtor against the applicant financial creditor.

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