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2022 (3) TMI 1417 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHIMaintainability 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:- The invoice shall mean the unpaid genuine invoices raised by the seller on a customer pursuant to the sales of goods or rendering of services as applicable and listed by the customer on the platform and the consideration means the price as determined by customer i.e., the financier agrees to pay the seller for creation of rights and interest in the receivable under the invoice by the customer in favour of the financier. It is noticed that the invoice is also defined under the agreement, which means the unpaid genuine invoices raised by the seller on a customer in pursuant to the sale of goods or rendering of the services, as applicable and listed by the customer on the platform - An invoice receivable is also defined in Clause (b) of Definition Clause which says invoice receivable shall mean all or such part of receivable under invoice, as may be agreed to acquire by the financier, for the consideration listed in the platform, which is referred to in Annexure - A. It is further observed that Right and interest receivable under invoice, may be owned fully or partly by the financier alongwith one or more than one financier. Further, the goods are supplied by the sellers and not by the applicants. The Sellers have assigned the Right and interest receivable under invoice to the applicant. Admittedly, the debt is assigned to the applicants by the seller who have raised the invoice (s) and in lieu of that invoice(s) the applicants had paid the amount in the account of the seller and not in the account of the Corporate Debtor. In the case in hand also, there is no disbursal of the amount to the respondent rather the amount was disbursed to the third person. As it is observed that the applicants are claiming the discounted invoices, therefore, in view of Section 21 (5) of IBC 2016, where an Operational Creditor has assigned or legally transferred any operational debt to a financial creditor, the assignee or transferee shall be considered as an operational creditor to the extent of such assignment or legal transfer. Therefore, though the applicants may be the Operational creditor(s) but in terms of Section 5 (7), Part 11 of the IBC, 2016, the applicants cannot be treated as the financial creditor (s). The present application filed under Section 7 of IBC is not maintainable and on this score alone, the application is liable to be dismissed - the present application is not maintainable under Section 7 IBC, therefore, it is needless to consider the other submissions raised on behalf of the respondent on the point of maintainability of the application. Application dismissed.
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