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2019 (3) TMI 1634 - Tri - Companies LawInitiation of Corporate Insolvency Resolution Process - Corporate Debtor failed to pay the outstanding amount - existence of debt and default - HELD THAT:- In the instant case, the Respondent has admittedly borrowed money in question against the payment of interest from the Petitioner and thus the outstanding amount is to be called financial debt and this debt is owed to Petitioner (OBC) and thus it is to be called a Financial Creditor - a Creditor includes a Decree holder and default non- payment in whole or any part or installment of the amount of debt due and payable and not yet paid. The Petitioner being Financial Creditor, has also obtained a decree from DRT - Therefore, the Petitioner being the financial institution is undoubtedly a Financial Creditor and the contention of the Corporate Debtor contra is not at all tenable and it is hereby rejected. Time Limitation - HELD THAT:- Admittedly, the Corporate Debtor has not paid the outstanding amount till date. The instant Company Petition is filed on 12.12.2018. Moreover, the loan in question granted by the Bank is a continue cause of action till loan is repaid to the Bank. As per definition of debt, it means a liability or obligation in whole or in part of the Claim - It is not in dispute that Provisions of the Limitation Act, 1963 is applicable to the provisions of the Code - the instant Company petition is within limitation. Admissibility of petition - HELD THAT:- There is no solution to the issue and Respondent has not come forward to pay even part amount and thus three is no other alternative for the Tribunal except to consider the question of admission. The Respondent committed default not only in respect of instant petitioner but also to the State Bank of India apart from other banks as per the Debt Recovery Tribunal Certificate - the Corporate Debtor is prima facie become insolvent and thus it is a fit case to admit. Since the instant Company petition IS filed under Section 7 0 Code, the Adjudicating Authority has to examine, whether Company Petition is filed in accordance with the provisions oj Section 7 of the Code or not. It is relevant to refer law on the points to be considered while considering a petition/ application filed under provisions of Section 7 of Code - HELD THAT:- The Adjudicating Authority/ Tribunal has to examine the instant case with regard to debt and default, whether Application/ petition is complete/ incomplete, such default is supported by evidence; named qualified Interim Resolution Professional - the instant Company petition is filed in accordance with law. The debt and default in question has occurred in the instant case, and thus it is a fit case for admission to initiate CIRP in respect of Corporate Debtor.
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