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2019 (10) TMI 1492 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - creation of a SPV which has not materialized - time limitation - HELD THAT:- There is no doubt that the Petition has been filed within limitation period. We have also carefully perused the terms and conditions of MOU whereby both the parties in addition to this financial transaction have entered for creation of a SPV which has not materialized. It is to be noted that the Corporate Debtor was already having tender in its favour from Kolkata Port Trust which as per its claim only has been illegally terminated by the Kolkata Port Trust and which has resulted into default in the payment of the loan taken by the Corporate Debtor - MOU consists of two transactions i.e. one is related to granting of loan and other is in regard to formation of SPV. From the perusal of MOU, it is evident that both these transactions are independent of each other. In any case, transaction loan has not been made for equity, hence, it remains of the nature of financial debt. Filing of petition by all the three entities independently or by the Financial Creditor on behalf of other two parties only when such purpose would have assigned the debt payable by the Corporate Debtor to them to the Financial Creditor - HELD THAT:- Provisions of Section 5(7) of the Insolvency and Bankruptcy Code, 2016 are absolutely clear. No material has been placed on record that to the fact that such debt has been legally assigned or transferred to the Financial Creditor. Hence, to this extent, we accept this plea of the Corporate Debtor. However, the loan given by the Financial Creditor itself is more than threshold limit of ₹ 1 Lakh, hence, this fact has not help the cause of the Corporate Debtor as far as maintainability of this Petition is concerned - pending arbitration proceedings cannot be limiting factor. The application deserves to be allowed - petition admitted - moratorium declared.
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