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2021 (3) TMI 1350 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - financial creditor (Non-Banking Financial Company) - existence of debt and dispute or not - HELD THAT:- It is patent that all requirements of Section 7 of the Code for initiation of Corporate Insolvency Resolution Process by a Financial Creditor stand fulfilled. In that regard, the application is complete as per the requirements of Section 7 (2) of the Code and other conditions prescribed by Rule 4 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Hon'ble NCLAT in the case of State Bank of India v. Athena Energy Venture Pvt. Ltd. [2020 (11) TMI 800 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI] has expressed its disagreement with the view taken earlier in the case of Dr. Vishnu Kumar Agarwal Vs. M/s Piramal Enterprises Ltd. [2019 (2) TMI 316 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] that CIRP against the corporate guarantor and the borrower cannot commence simultaneously and therefore the rationale in Piramal judgement is no more a precedent. Hence, the ground raised by the respondent that the present petition is not maintainable. In order to allow any application under Section 7 of the Code, the applicant has to proof that the application is maintainable as the applicant is a ‘financial creditor’, and the debts claimed in the application come within the purview of "financial debt" as defined under the Code. If this is applied to the to the case in hand, it can be seen that there is existence of Loan facility of ₹ 16,00,00,000, Disbursal of Loan facility of INR 13,35,00,000/- and existence of Default of ₹ 7,94,47,080/-. Hence, the present petition is complete. A default amounting to lacs of rupees has occurred within the meaning of Section 4 of the Code and the application under sub section 2 of Section 7 is complete; and no disciplinary proceedings are pending against the proposed Interim Resolution Professional. Thus, the application warrant admission as it is complete in all respects - application admitted - moratorium declared.
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