Ram Nath Agarwal Radhey Lal and Ors. Vs. Cholamandalam Investments and Finance Company Ltd. – Supreme Court
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Hon’ble NCLAT held that a plain reading of Sections 5(7) and 5(8) of the IBC shows that for any creditor to become financial creditor under Section 5(7) of IBC, there must be a financial debt and for any debt to qualify as a financial debt, that debt along with interest, if any, should have been disbursed against the consideration for the time value of money. Use of expression ‘if any’ as suffixed to the word ‘interest’ leaves no shadow of doubt that the component of interest is not a sine qua non for bringing the debt within the fold of financial debt. What is material however is that the disbursement of debt should be against consideration for the time value of money irrespective of whether the debt is interest bearing or not.
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Hon’ble NCLT Kolkata Bench held that:
(i) If any interest component claimed in the Form B has been admitted by the RP and has been factored into the information memorandum, the same will not be considered waived off and thus, shall be payable by the SRA.
(ii) While the Income Tax Authority had every right to pass assessment orders for the dues of the Corporate Debtor, the recovery of the same during the moratorium period would be prohibited.
(iii) Upon perusal of Orders under section 254/251/153A/143(3) of the Income Tax Act, 1961, it can be seen that the refund amounts for various years including A.Y. 2005-06, 2007-08, 2008-09, and 2010-11 have been adjusted against dues of other assessment years belonging to a period prior to the approval of the resolution plan by the Adjudicating Authority. Such dues, since extinguished in light of the approval of the resolution plan are no longer payable and any adjustment in favour thereof is not sound in the eyes of law.
(iv) The adjustment of the amounts refundable to the Applicant No.1 against such dues is bad in law and not permissible.
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