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2017 (12) TMI 1842 - 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 - HELD THAT:- A financial creditor falls under section 5(7) can file an application for initiating corporate insolvency resolution process against a corporate debtor before this Adjudicating Authority when the default has occurred. No doubt the debt claimed is a financial debt as defined under section 5(8) of I&B Code. Herein this case Annexure T is found a legally executed assignment agreement. It is a registered document, stipulating all the terms and conditions. Being found Annexure T, a document admissible in evidence, this Adjudicating Authority cannot go behind the purpose of execution of the deed. Ld. Counsel for the respondent submits that it is a fraudulent document and that respondent has no knowledge about the execution of the deed. The said contentions are unsustainable in the peculiar circumstances of the case in hand. Annexure T proves that petitioner is an assignee comes under the purview of section 5(7) of I&B code. Pursuant to Annexure T, the assignee herein has got right to enforce such security interest, pledges, and/or guarantees and appropriate the amount realized their form towards repayment of loan and to exercise all the rights of Assignor Bank in relation to such security interest, pledges and guarantees. The assignment of debt not at all affect the right of the debtor and therefore, respondent being evident that is a borrower does not have any right to object to the assignment of the debt by the lender. In a recent National Company Law Appellate Tribunal (NCLAT) ruling of Neelkanth Township and Construction Pvt. Ltd. v. Urban Infrastructure Trustees Ltd. [2017 (9) TMI 1130 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, MUMBAI], one among the issues under consideration was the question of application of Law of Limitation about the Insolvency and Bankruptcy Code, 2016. The issues for consideration before the NCLAT was whether the application under Section 7 of the IBC is time barred, as the debt claim related to the years 2011, 2012 and 2013 and it was held that "the Limitation Act, (Limitation Act) does not apply to IBC”. So, no doubt the contention of the Ld. Counsel that the application is barred by limitation is also not sustainable under law. In an application of this nature, this Adjudicating Authority is bound firstly to consider as to whether there is existence of default from the records and information utility or based on other evidence furnished by the financial creditor. If the petitioner succeeds in proving default of which the claim put forward by the petitioner and satisfy Sec.7 (5)(a) of the I& B Code, this Adjudicating Authority is bound to admit the application. The procedure adopted for the disposal of this application is summery in nature - The petitioner succeeded in establishing that the application is complete in all respects. Petition admitted - moratorium declared.
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