Issuance of cheque in discharge of its liability by the Corporate Debtor does not confer the status of a Financial Creditor upon the Applicant – M/s N.R.G. Tax Vs. M/s The National Sewing Thread Company Ltd. Through RP – NCLT Chennai Bench
In this case, the Applicant claims to be a Del Credere Agent for a third party/mill owners and for the supplies made by such third party/mill owners to the Corporate Debtor, the Applicant pays the money on behalf of the Corporate Debtor to such third party/mill owners. The AA observes that firstly, it is required to be noted here that there is no explicit written agreement between the Corporate Debtor and the Applicant herein. The Applicant has not entered into any contract / agreement with the Corporate Debtor in order to advance any loans or for financing any money towards the supply of goods. Secondly, it is required to be noted that none of the clauses contained in the Del Credere Agreement as referred by the Learned Counsel for the Applicant authorize / entitle the Applicant to proceed against any person who has not paid the amount. The Learned Counsel for the Applicant stated that since the Applicant has paid money on behalf the Corporate Debtor for the goods supplied by the mill owners, it is implied that he is a financial creditor. The said contention of the Learned Counsel for the Applicant is required to be brushed aside in view of the fact that the claim of the Applicant, in the absence of any legally binding agreement between the parties, is not falling under any of the category stipulated under Section 5(8)(a) to (i) of IBC, 2016 in order to qualify as a ‘financial creditor’.
