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2022 (3) TMI 1553 - NATIONAL COMPANY LAW TRIBUNAL BENGALURU BENCHMaintainability of application - initiation of CIRP - Corporate Debtor has defaulted on various payments due to the Applicant - bonafide intent for resolution or not - forum used as recovery mechanism - active participation in the resolution process of the Corporate Debtor in terms of the Prudential Framework before filing the CP and even thereafter - HELD THAT:- Whether an application under section 7 of the Code is filed with bona fide intention for the resolution of the Corporate Debtor or for recovery of debt can be determined by examining the facts of the case. In the present case, the Petitioner had actively participated in the resolution process of the Corporate Debtor in terms of the Prudential Framework, along with all other Lenders before filing the CP and even thereafter. This conduct of the Petitioner puts a question on the bona fides of the instant Petition. The conduct of the Petitioner made to believe that it has been trying to utilise this forum as a 'recovery mechanism'. It is pertinent to take into consideration the financial position of the Respondent and the repercussions if the Respondent Company, a going concern, is admitted into CIRP more so when all other Lenders, who comprises the required majority percentage, in the event of constitution of the Committee of Creditors, seriously pursuing for the resolution of the Corporate Debtor under the Prudential Framework, with the active consent and participation of the Petitioner. In the present case, the Respondent is willing and trying to repay the debts of all the Creditors and to show its bona fides when it was ready to sell its vending business, and when other Lenders accepted the said move, but the Petitioner refused to cooperate in that process. This action of the Petitioner clearly establishes that its intention was recovery of its debt but not the resolution of the Corporate Debtor. Therefore, though, a Creditor can choose its own forum, but in the peculiar facts of the present case, we are of the view that the Petitioner is trying to utilise the provisions of the I & B Code, 2016, for recovery of debt, which is impermissible. Petition dismissed.
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