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2020 (10) TMI 160 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCHMaintainability of application - initiation of CIRP - Corporate Debtor has committed default in payment of outstanding debt - Existence of debt and dispute or not - HELD THAT:- When we look at the scheme of the IBC, 2016, the preliminary condition is that there must be a debt which is met. The second condition is, such debt must be due and payable. In regard to this, as apparent from the provisions of clause 4.3 of Article IV of the Agreement between the parties as mentioned herein above, it is established that the delivery of the said flats has to be given upto May, 2020. Having said so, if we accept the contentions of the Financial Creditor that it may not be possible owing to prohibition on construction due to violation of sanction plan, hence, debt should be considered due and payable particularly when the Financial Creditor has repudiated the contract. This is particularly in the background of the fact that Financial Creditor does not wish to give effect to the provisions of the contract in toto i.e., if, based upon termination notice, the amount is considered as due and payable, then, obviously clause 9.1(i) of Article IX of the Agreement shall come into play. Hence, based upon the above proposition, it cannot be said that debt becomes due and payable. This petition is pre-mature at this stage and thus, not maintainable - Petition dismissed.
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