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2020 (11) TMI 1019 - Tri - Insolvency and BankruptcyMaintainability of application - Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - maintainability of simultaneous proceedings under SARFAESI Act and IBC - existence of debt and dispute or not - HELD THAT:- The identical issue fell for consideration before the Hon'ble NCLAT in the matter of RAKESH KUMAR GUPTA VERSUS MAHESH BANSAL [2020 (6) TMI 688 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] where it was held that The pendency of actions under the SARFAESI Act or actions under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 does not create obstruction for filling an Application under Section 7 of Insolvency and Bankruptcy Code 2016, specially in view of Section 238 of IBC. Thus, it is now trite that pendency of actions under the SARFAESI Act by the Financial Creditor is not a bar for filling an Application under Section 7 of IBC, 2016, especially in view of Section 238 of IBC. Further, the proceedings under IBC, 2016 cannot be said to be a parallel proceedings since the Application under Section 7 of IBC, 2016 is filed to bring about a Resolution for the Corporate Debtor, on the other hand the proceedings under SARFAESI Act, 2002 is for recovery of the amount which is due and payable to the Financial Creditor. Existence of debt and dispute or not - amount of default involved - HELD THAT:- There is a debt and default on the part of the Corporate Debtor and the Corporate Debtor is unable to repay its dues to the Financial Creditor - It is also seen that the present Application has been filed before this Tribunal on 17.06.2020 and as such the Notification issued by the Central Government in this regard by increasing threshold limit from ₹ 1 Lakh to ₹ 1 Crore would not apply to the facts and circumstances of the present case, as the amount claimed to be in default is already more than ₹ 1 Crore. It is also noted that the Central government by way of an amendment inserted in Section 10A of I&B Code, 2016 wherein the default in respect of the dues arising from the period 25.03.2020 till 25.09.2020, (now extended upto 25.12.2020) has been excluded and as such in the present case from Part-IV of the Application it is seen that the default has occurred much prior to 25.03.2020 and hence Section 10A of I&B Code, 2016 also would not come to the aid of the Corporate Debtor - this Application as filed by the Applicant-Financial Creditor is required to be admitted under Section 7 (5) of the I&B Code, 2016. Application admitted - moratorium declared.
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