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2018 (9) TMI 1529 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - applicant as to come under the purview of “person” as defined under Section 3(23) of the Code - default in payment of the financial debt - whether applicant, not being a ‘person’, cannot be a financial creditor and hence cannot file the present application under Section 7 of the Code? - Held that:- In the present case the respondent corporate debtor has availed the credit facility on the strength of the Corporate Card Account Agreement duly executed between the parties. Respondent company had accepted the terms and conditions of Corporate Card Account Agreement. Applicant has placed on record copy of the agreement duly executed and signed by the director of the respondent company with company seal. Applicant has also placed on record the Board resolution of the respondent company dated 18.09.2015 wherein it was resolved to authorise Gaurav Vasudeva, Director to sign and avail banking facilities in the name of and on behalf of the company from American Express Banking Corp. He was further authorised to operate the banking facilities on behalf of the company. There is no dispute that the respondent company has availed the card facilities. However except part payment of ₹ 1 lac, no other repayment was made by the respondent. Consequently, respondent company was liable to pay interest and other card charges as per binding card agreement. The amount was disbursed against time value of money and for commercial purpose. The debt claimed in the application includes outstanding principal, interest and other card charges as per mutual agreement and therefore comes within the purview of ‘financial debt’. The applicant accordingly comes within the definition of ‘financial creditor’ in respect of ‘financial debt’ in question and has a clear right to file application under Section 7 of the Code. The material on record clearly goes to show that respondent had availed the loan facilities and has committed default in repayment of the loan amount. Moreover, the application of the financial creditor is complete and there is no disciplinary proceeding pending against the proposed IRP. We are satisfied that the present application is complete and the applicant financial creditor is entitled to claim its outstanding financial debt from, the corporate debtor and that there has been a default in payment of the financial debt. Thus in terms of Section 7(5)(a) of the Code, the present application is admitted.
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