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2017 (12) TMI 1844 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHIApplication for initiation of CIRP - financial creditor or operational creditor - application was preferred by the Appellant under Section 7 of the I & B Code - whether the application has been treated to be an application under Section 9 of the I & B Code or not? - HELD THAT:- The Appellant-M/s. PEC Ltd. has disbursed the amount to 'M/s. Sree Ramakrishna Alloys Limited' against the consideration for the time value of money. It is also clear that M/s. Sree Ramakrishna Alloys Limited by the agreement dated 24th February, 2014 has borrowed money from the Appellant-M/s. PEC Limited against the payment of interest. Thus, the Appellant-M/s. PEC Ltd. come within the meaning of 'Financial Creditor' and is eligible to file an application under Section 7 of the 'I & B Code' there being a debt and default on the part of the Respondent. The Adjudicating Authority failed to appreciate that the application(s) preferred by Appellant under Section 7 of the 'I & B Code' cannot be treated as an application under Section 9 of the 'I & B Code' and the Appellant who is a 'Financial Creditor' cannot be treated as 'Operational Creditor'. If an application is filed by a person under Section 7 of the 'I & B Code' and in case the Adjudicating Authority comes to the conclusion that the Applicant is not a 'Financial Creditor' in such case the Adjudicating Authority has jurisdiction to reject the application under Section 7 of the 'I & B Code', but the said Authority cannot treat the format of the application under Section 7 of the 'I & B Code' (Form-1) as an application under Section 9 of the 'I & B Code' (Form-5), nor can treat such person an 'Operational creditor', in absence of any claim made under Section 9 of the 'I & B Code'. Further, as the informations required to be given in Form-1 varies from the informations as required to be given in Form-5 (As per Section 9), including instructions made below the requisite form(s), no application filed under Section 7 can be treated as an application under Section 9 of the 'I & B Code - in absence of a notice under sub-section (1) of Section 8 of the 'I & B Code', an application under Section 7 cannot be treated to be an application under Section 9. In the present case, as the application preferred by the Appellant under Section 7 in both the appeals are maintainable and have been admitted, order of moratorium has been passed and 'Interim Resolution Professionals' have been appointed, no interference is called for against the impugned order - Appeal allowed.
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