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2020 (5) TMI 6 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of dispute or not - time limitation for filing of application by Financial Creditor - HELD THAT:- The period during which a party has been prosecuted with due diligence, another proceeding whether in a court of first motion or an appeal or revision against the party that period shall be excluded where the proceeding relates to the same matter in issue and therefore, when we placed reliance upon Section 14 of the Limitation Act, then we are of the considered view that the decision upon which the Ld. Counsel for the Corporate Debtor has placed reliance under the facts and circumstances of the case in hand is not applicable rather in view of the facts discussed, we are of the considered view that period spent in the proceeding pending before the DRT, DRAT and Hon'ble Delhi High Court is liable to be excluded while computing the period of limitation and when we shall exclude that period then we are of the considered view that application filed by the Financial Creditor is within time. There are no force in the contentions raised on behalf of the Ld. Counsel for the Corporate Debtor that the present proceeding is barred by limitation, accordingly, we find that it is well within time. In order to trigger the proceeding under section 7 of IBC, we have to see only two things i.e. there is a financial debt and the debt is due. It is of no matter that the debt is disputed. In the light of the decision, when we shall consider that case in hand then we find, the documents and the pleading shows that the financial debt has been given by the applicant to the Corporate Debtor and that has not been repaid, which would also evident from the One Time Settlement Proposal dated 15-9-2018, 15-9-2018 & 15-2-2019 - thus, the Financial Creditor has established this fact that there is a financial debt and that has not been paid and so there is default and he is legally entitled to get' that amount. It is seen that there is default in payment, there is a financial debt and the amount in default is more than ₹ 1, 00, 000/-which is the minimum threshold limit fixed under IBC, 2016 and there are no disciplinary proceedings pending against the proposed IRP. Under the circumstances, this Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent. Petition admitted.
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