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2019 (4) TMI 1903 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - default under the Subscription Agreement of 2016 - existence of debt and dispute or not - Whether the Appellant is a 'Financial Creditor' of the 'Corporate Debtor'? - Whether the debt of the Appellant stands paid as held by the Adjudicating Authority? HELD THAT:- In the present case, there has been a disbursal of ₹ 102 Crores in favour of the 'Corporate Debtor' by way of 'OCDs'. In terms of Section 5(8)(c), any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument, comes within the meaning of 'financial debt'. Therefore, from the aforesaid fact, we find that there is a disbursal of ₹ 102 Crores in favour of the 'Corporate Debtor' and the 'OCDs' originally met is against time value of money and per se, constitute 'financial debt' in the light of Section 5(8)(c) of the 'I&B Code'. Whether the debt amount payable by 'M/s. Ind- Barath Energy (Utkal) Limited' is deemed to have been repaid in view of invocation of pledge shares and the conversion of 'CCDs' into equity shares? - HELD THAT:- The Promoters confused the Adjudicating Authority by co-relating the two independent agreements i.e. one Subscription Agreement dated 23rd December, 2016 and the separate agreement which the Appellant and its sister entity, 'MAIF-II' has entered into for subscription to certain 'NCD' and 'CCD' in the holding company of the 'Corporate Debtor' which are unrelated to the agreement dated 23rd December, 2016 - The Adjudicating Authority failed to consider the same and thereby, wrongly held that the debt has been paid and there was no default on conversion of the 'CCD'. It also failed to consider that the interest to which the Appellant was entitled for different debt for which notice was given and, as discussed above, had not been paid by the 'Corporate Debtor' and there was a default of more than ₹ 1 Lakh on the part of the 'Corporate Debtor'. The Appellant- 'MAIF Investments India Pte. Ltd.' is a 'Financial Creditor' of 'M/s. Ind-Barath Energy (Utkal) Limited'- ('Corporate Debtor'). Further, we hold that by the invocation of the pledge of shares pursuant to the Subscription Agreement, no presumption can be drawn that the disbursement of ₹ 102 Crores so made was towards the 'OCD' and stands paid. Impugned Order set aside - 'Resolution Professional' are directed to treat the Appellant as a 'Financial Creditor' for the purpose of constitution of the 'Committee of Creditors' and allow the Appellant- 'MAIF Investments India Pte. Ltd.' to take part as a member of the 'Committee of Creditors' with voting share to the extent of the amount disbursed and claimed by it. Appeal allowed.
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