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2022 (11) TMI 933 - AT - Insolvency and BankruptcyMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt which is due and payable and has not been paid? - Corporate Debtor is liable to pay for the debts or not? Whether there exists debt which is due and payable and has not been paid? - HELD THAT:- The definitions make the distinction between Operational Debt and Financial Debt. As seen from above, ‘financial debt’ is an inclusive and non-exhaustive definition given under Section 5(8) of the I & B Code to mean “a debt alongwith interest, if any, which is disbursed against the consideration for time value of money. Financial creditors have relationship with the entity as financial contract, like loan or security etc. Whereas, an operational debt as defined under section 5(21) of I & B Code, 2016 signifies a claim in respect of the provisions of goods or services. This Appellate Tribunal notes that no concrete evidence has been brought out or documentation has been produced to establish that there existed any pre-existing disputes between the parties. The Arbitration proceedings that the 2nd Respondent is trying to portray as a pending dispute is infact not between the 2nd Respondent (Corporate Debtor) to 1st Respondent (Operational Creditor) and is rather between 2nd Respondent and his principal employer for the supply services i.e. ‘TANGEDCO’ - this Appellate Tribunal, therefore, in the present appeal do not find any error in the ‘impugned order’ passed by the ‘Adjudicating Authority’ and notes that the ‘Adjudicating Authority’ followed all the steps laid down in Mobilox while ascertaining the application under Section 9. Therefore, this Appellate Tribunal holds that the ‘Adjudicating Authority’ has correctly examined the existence of debt which was not paid and there was no pre-existing dispute between the 2nd Respondent (Corporate Debtor) and the 1st Respondent (Operational Creditor). Whether the ‘Corporate Debtor’ is liable to pay for the debts or not? - HELD THAT:- It is seen that, though an ‘NOC’ was issued by the 2nd Respondent however they did not seek prior approval from ‘TANGEDCO’ that such payments would be made by ‘TANGEDCO’. Therefore, there does not exist any valid contract between 2nd Respondent (Corporate Debtor) and ‘TANGEDCO’ stating that payment to 1st Respondent (Operational Creditor) would be made by ‘TANGEDCO’. Therefore, in such a scenario the onus/ liability comes back to the 2nd Respondent (Corporate Debtor) to ensure that amounts are paid to the 1st Respondent (Operational Creditor), and as such all the claims made against the ‘2nd Respondent (Corporate Debtor) are valid. This ‘Appellate Tribunal’ is of the considered opinion that there is no error in the ‘impugned order’ dated 16.09.2022 passed by the ‘Adjudicating Authority’. Appeal devoid of any merit is therefore is set aside and stand dismissed.
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