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2020 (9) TMI 941 - AT - Insolvency and BankruptcyMaintainability of application - Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial debt or not - Aggrieved Person or not - HELD THAT:- It is to be borne in mind that in a subsisting application, liability to pay a sum of money is condition precedent of a 'Financial Debt'. The 'Financial Debt' represents the money payable in respect of loan borrowing made by a Corporate Debtor. In short, the sum of money is certainly and in all events payable is a 'Debt', disregard to the fact whether it is payable now or at a later point of time, in the considered opinion of this Tribunal. Indeed, in Part II of the IBC, Section 63 expressly oust the 'Jurisdiction' of a 'Civil Court' or an 'Authority' and specifies that such Civil Court or an 'Authority' cannot entertain any suit or proceedings which are in the nature of a 'lis' in respect of which the 'National Company Law Tribunal' or 'National Company Law Appellate Tribunal' has jurisdiction. As per Section 7 of the Code, a Financial Creditor' can initiate 'Insolvency Proceedings' against the 'Corporate Debtor' before the 'Adjudicating Authority'. Section 4 of the Code says that Part II applies to all matters relating to 'Insolvency' and 'Liquidation of 'Corporate Debtors' where the minimum amount of the default is Rs. One Lakh. In terms of Section 9 of the Code, an 'Operational Creditor' after fulfilling the requirements of Section 8, can initiate the 'CIRP' against the 'Corporate Debtor' before an Adjudicating Authority. In pith and substance if the 'Debt' due and payable is above One lakh rupees, then the Application for 'Corporate Insolvency Resolution' can be filed before the Adjudicating Authority i.e. NCLT and not before any other fora. Furthermore, the ingredients of Section 238 of the Code operates against other laws when they are in conflict with the Code - the Application (under Section 7 of the Code) filed by the 1st Respondent/Applicant (Financial creditor) is perfectly per se maintainable in Law. As far as the present case is concerned, the 'Memorandum of Understanding' consists of two transactions i.e. one is related to the granting of loan and the other is in regard to formation of SPV. These transactions are quite independent of each other. The Loan was given by the Respondent to the 'Corporate Debtor' and its group Companies and for which promissory notes were executed. Section 5(7) of the Code defines 'Financial Creditor' meaning any person to whom a Financial Debt is owed and includes a person to whom such debt has been legally assigned or transferred - Considering the fact that in the instant case, there is a 'Debt' and 'Due' payable by the Corporate Debtor and a default was committed by the Corporate Debtor, this Tribunal without any haziness holds that the impugned order of the Adjudicating Authority ('National Company Law Tribunal, Kolkata Bench) dated 25.10.2019 in admitting the Section 7 Application filed by the Respondent/Financial Creditor is free from any patent illegalities. Appeal dismissed.
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