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2021 (1) TMI 1191 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - fulfilment of conditions laid down under Section 10 of the Contract Act - HELD THAT:- It is the duty of the Adjudicating Authority to decide in conformity with the pleadings and the proofs i.e. to say “jus decere”, and non “jus dare” to administer the justice and not to make the law. It is well established rule of law that- “all contracts and agreement but all agreements are not contract”. This is so because for a contract to be valid, it needs to fulfil all the essential ingredients mentioned under Section 10 of the Indian Contract Act, 1872 (hereinafter referred to as Contract Act). Even if it is assumed that MoU fulfils all the ingredients of the Contract Act but in that case the MOU so relied upon by the petitioner is bad in the eye of law inasmuch as it does not fulfil the condition of Section 10 of the Contract Act, as the date is not given, and in number of places the vital information and details are blank as is apparent from page no 218 and 220 of the application (Exhibit-H). The enforceability of a MoU depends upon the principle governing legislation, I.e. the Contract Act. The Petitioner, admittedly has shown the date of default as the date of filing of the commercial suit number 782 of 2017 filed somewhere in July 2017 as reflected from Form I, part IV at page no 6 of the Application. It is to be mentioned herein that, the word “Creditor”, “Debt”, and “default” are used at many places in Insolvency Code and hence are very important. “Default” means non-payment of debt when whole or any part of instalment of the amount of debt has become due and payable and is not paid by the debtor or the Corporate Debtor, as the case may be, Section 3(12) of the IB Code. Therefore, the date of filing of the commercial suit i.e. dated 12.07.2017, cannot be, in any manner be called as date of default, as per IB Code. Thus, due to want of “date of default”, the petition is bad in eye of law and not maintainable. On going through the records and documents produced by both the sides it is amply clear that, the arrangement between the parties are in the nature of business sharing and there is no 'financial debt' - the records show that even after receiving letter dated 03.06.2011(Letter of Intent), the petitioner has never raised any objection and has accepted and admitted the conditions drawn by the respondent. Under such circumstances, even if we assume and consider the petitioner as "financial creditor", then even the claim so filed by the petitioner stands time barred. The Adjudicating Authority is of the considered view that the instant petition is not maintainable - Petition dismissed.
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