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2019 (3) TMI 1940 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Corporate Debtor contends that the Company’s stock (Diamonds), which was kept as security with the bank has been misappropriated/lost due to bank’s fraud/ gross negligence - Financial Creditors - Non-Performing Assets - existence of debt and dispute or not - HELD THAT:- This Bench finds that the counter claim filed by the Corporate Debtor in DRT is no bar to proceed with this petition keeping in view the fact that the Adjudicating Authority is not bound to ascertain the exact amount of claim at the stage of admission. In V.R. Polyfab Pvt. Ltd. vs. Sadhbhav Enterprise Pvt. Ltd. [2017 (9) TMI 1859 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD], decided on 19th September, 2017, NCLT, Ahmedabad Bench, gave a similar view on this question observing that even assuming that the Corporate Debtor is entitled for certain amount from the Financial Creditor, the same can only be treated as a set off or counter claim and therefore it cannot be treated as a ‘dispute’ relating to financial debt due to the financial creditor from the Corporate Debtor. Further, it observed that though Corporate Debtor has pleaded counter-claim or set-off, but it cannot be said that there is no default in repayment of financial debt by Corporate Debtor. Debt and default - HELD THAT:- The Corporate Debtor does not deny the same. Financial Facilities have been duly granted and the amounts have been disbursed. There has been a default in repayment and the same has been admitted to some extent. This can be said in view of the reply letter dated 09.05.2016, wherein the Company replied to the notice of ICICI Bank saying that it was facing temporary financial difficulties and that they were taking steps towards regularizing its loan account. It is worth to note that there is no denial of the debt amount by the Corporate Debtor - Also, the pendency of proceedings in DRT is no bar to the present Section 7 proceedings in view of Section 238 of the Code. The Petitioner’s claim of existence of debt and default has been corroborated with ample evidence and is enough to hold a view in its favour. The Financial Creditor has established that the loan was duly sanctioned and duly disbursed to the Corporate Debtor but there has been default in payment of Debt on the part of the Corporate Debtor - the nature of Debt is a “Financial Debt” as defined under section 5 (8) of the Code. It has also been established that admittedly there is a “Default” as defined under section 3 (12) of the Code on the part of the Debtor. The Petitioner has not received the outstanding Debt from the Respondent and that the formalities as prescribed under the Code have been completed by the Petitioner, this Petition deserves ‘Admission’ - Petition admitted - moratorium declared.
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