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2019 (9) TMI 1566 - Tri - Companies LawMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - assignment of debt - validity of Assignment Agreement - privity of contract - existence of debt and dispute or not - HELD THAT:- A Financial Creditor falls under section 5(7) can file an application for initiating corporate insolvency resolution process against a Corporate Debtor before this Adjudicating Authority when the default has occurred. No doubt the debt claimed is a financial debt as defined under section 5(8) of I & B Code. Herein this case Annexure 5 is found a legally executed assignment agreement. It is a registered document, stipulating all the terms and conditions. Annexure 5 proves that Financial Creditor is an assignee comes under the purview of section 5(7) of I & B code - The assignment of debt not at all affect the right of the principle borrower/corporate guarantor (Corporate Debtor in this case) and therefore, Corporate Debtor, being evident, does not have any right to object to the assignment of the debt by the lender. The rest of the allegations that Financial Creditor filed this petition with mala fide intention, that Financial Creditor suppressed material facts are all found not worthy for consideration. In an application of this nature, this Adjudicating Authority is bound firstly to consider as to whether there is existence of default from the records and information utility or based on other evidence furnished by the Financial Creditor. If the Financial Creditor succeeds in proving default of which the claim put forward by the Financial Creditor and satisfy Section 7(5)(a) of the I & B Code, this Adjudicating Authority is bound to admit the application. Application admitted - moratorium declared.
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