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2019 (6) TMI 1565 - NATIONAL COMPANY LAW TRIBUNAL , PRINCIPAL BENCH, NEW DELHIMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Financial Debt - Financial Creditor - HELD THAT:- The expressions "Financial Creditor" and "Financial debt" have been defined in Section 5 (7) and Section 5 (8) of the Code and precisely "Financial debt" is a debt along with interest, if any, which is disbursed against the consideration for time value of money. In the present case applicant sole proprietor had disbursed the loan amount of ₹ 43,00,000 directly in the bank account of the corporate debtor through RTGS. The corporate debtor had executed MOU in favor applicant for repayment of the loan amount with additional amount of ₹ 5,00,000/- as consideration against the time vale of money. The corporate debtor in order to secure its debt also issued two cheques in favour of applicant. It is thus seen that the loan was disbursed against the consideration for time value of money with a clear commercial effect of borrowing. Moreover, the debt claimed in the present application includes both the component of outstanding principal and the consideration amount - thus, not only the present claim comes within the purview of 'Financial Debt' but also the applicant can clearly be termed as 'Financial Creditor' so as to prefer the present application under Section 7 of the Code. An application under Section 7 of the Code is acceptable so long as the debt is proved to be due and there has been occurrence of existence of default. What is material is that the default is at least 1 lakh. In view of Section 4 of the Code, the moment default is of Rupees one lakh or more, the application to trigger Corporate Insolvency Resolution Process under the Code is maintainable - It is thus seen that the applicant 'financial creditor' has placed on record evidence in support of the claim as well as to prove the default - The corporate debtor is entitled to point out to the Adjudicating Authority that a default has not occurred; in the sense that a debt, which may also include a disputed claim is not due i.e. it is not payable in law or in fact. However, despite service respondent preferred to remain absent and the claim of the petitioner remained undisputed. It is pertinent to mention here that the Code requires the adjudicating authority to only ascertain and record satisfaction in a summary adjudication as to the occurrence of default before admitting the application. The material on record clearly goes to show that respondent had availed the loan and has committed default in repayment of the outstanding loan amount. The availed loan having not paid in full as per the mutually agreed contract, the default of debt is apparent. The present application is complete in all respect and the applicant financial creditor is entitled to claim its outstanding financial debt from the corporate debtor and that there has been default in payment of the financial debt - in terms of Section 7 (5) (a) of the Code, the present application is admitted. Application admitted - moratorium declared.
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