Home Case Index All Cases Insolvency and Bankruptcy Insolvency and Bankruptcy + AT Insolvency and Bankruptcy - 2021 (10) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (10) TMI 1082 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors or not - creation of equitable mortgage over the Apartment proposed to be developed - physical possession of property taken over by first respondent or not - proceedings under SARFAESI Act is pending - HELD THAT:- There is no impediment for an ‘Applicant’ to prefer an Application under section 7 of the I&B Code, 2016 when already the proceedings under SARFAESI Act, 2002 are pending. For maintaining an application u/s 7 of the Code, an applicant is to establish the existence of a debt, which is due from the Corporate Debtor. In fact, the issue of whether there is debt and default can be looked into only if the Corporate Debtor disputes the debt or takes a plea that there is no default though there is debt. Ordinarily, the ‘Corporate Debtor’ is empowered to point out that a ‘Default’ had not occurred. It cannot be forgotten that a debt may not be due, if it is not payable either in law or in fact. In the instant case, just because a ‘Guarantee Deed’ is furnished by a different entity, the same would not in any way relieve the obligation of the ‘Corporate Debtor’ to pay the First Respondent / Financial Creditor as Principal Borrower. On behalf of the First Respondent / Financial Creditor/Applicant it is brought to the notice of this Tribunal that the Corporate Debtor had availed the financial debt / loan by executing a Loan Agreement and Promissory Note to and in favour of the First Respondent / Financial Creditor. Undoubtedly, under the I&B Code, ‘CIRP’ is not an adversarial litigation, like the ‘Court of Law’. An ‘Adjudicating Authority’ is not deciding a money claim in a civil suit. An Adjudicating Authority’s part is confined to the act of deciding whether the application is complete, and whether there is any debt or default - in view of the fact that in the present case the existence of ‘debt of the Corporate Debtor and default’, committed thereto, this ‘Tribunal’ is of the considered view that the Section 7 application is complete and viewed in that perspective, the impugned order dated 13.11.2020 passed by the ‘Adjudicating Authority’ in admitting the application and appointing the ‘Interim Resolution Professional’ Mr. A. Mohan Kumar and declaring Moratorium etc. are free from any legal infirmities. Application dismissed.
|