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2020 (5) TMI 394 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- It is found that the Petitioner Bank has submitted the documents duly executed by the Corporate Debtors and guarantors along with the Statement of Accounts with Certificate under the Banker's Book of Evidence Act, 1891, in support of their IB Petition for initiation of C.I.R.P. - The CD has defaulted in making repayment of credit facilities to the Petitioner Bank and the date of default is 30-5-2015. The statement of accounts as on 7-7-2018 along with the Banker's Book Evidence Certificate annexed with the Petition confirms the amount in default is ₹ 310,21,71,498.38Ps as on 7-7-2018. Further, the CIBIL Reports submitted by the Applicant Bank confirm the existence of liability to the Financial Creditor and default committed by the Corporate Debtor - The Petitioner Bank has filed the petition within the period of limitation, as the last payment into the account has come on 20-8-2015 and the application has been filed on 13-7-2018 besides submission of OTS Proposal on 25-9-2018. It is a settled legal position that the pendency of SARFAESI proceeding or other dispute does not prevent a Financial Creditor to trigger the C.I.R.P. because the nature of remedy being sought for under the provisions of the I.B. Code is "Remedy in Rem" in respect of the CD. Also, application is filed by the Respondent under section 60(5) read with section 442 of Companies Act, 2013 against the Applicant Bank with a prayer to refer the matter for mediation and conciliation panel - At this stage, this Adjudicating Authority is only to decide whether the petition filed by the Financial Creditor under section 7 of IBC is to be admitted or rejected, considering the facts that whether the default has occurred or not and the application under section 7 filed under sub-section 2 of the IBC is complete or not in all respects. When the application is yet to be admitted, the question of referring the petition to the Mediation and Conciliation panel does not arise and moreover the Ld. Lawyer of the Financial Creditor strongly opposed to this prayer of the Corporate Debtor as the Applicant Bank has not accepted the OTS proposal submitted on 27-8-2018 and they are not giving consent for referring the mater to Mediation and Conciliation Panel. The present IB Petition is admitted as found complete in all respects - application admitted - moratorium declared.
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