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2018 (1) TMI 125 - Tri - Insolvency and BankruptcyCorporate insolvency procedures - financial debt having a commercial effect of borrowing - Held that:- The present transaction which relate to a Cash Call fall within the definition of commercial effect of borrowing. Further, by raising dispute with respect to quantum of amount due under such transaction or omission to perform the terms of the contract or such allegation to exceed beyond the terms of the contract does not necessarily absolved the corporate debtor from its liability arisen under such contract, until a Competent Court of Law determines the issue and adjudicate the dispute. In our humble opinion the RP and COC have not been vested such jurisdiction under the Code to adjudicate a dispute/claim of an interested/affected party, while preparing for a resolution plan. Therefore, the present applicant is qualified as per the terms of PSC & JOA is to be treated as a financial creditor to the extent of amount of expenditure incurred by it on behalf of the Corporate Debtor Company. Since, there appear some dispute with regard to quantum of expenses incurred by and the amount due under the Cash Call and JIBs as the Corporate Debtor Company has also sought indemnification of some loss occurred to it, which is a subject matter of a Competent Court of Law. Therefore, we restrain ourselves to express our view on merits of such issue involved but must feel that the present applicant deserves to be treated as a financial creditor and its claim of expense incurred by it fall within the ambit and scope of a financial debt having a commercial effect of borrowing. Hence, it is entitled to be included in COC as a financial creditor. However, the ratio of its voting share can be decided by the COC by taking into consideration the actual amount so far incurred by the GSPC on behalf of the JODPL, but excluding the interest component and other miscellaneous expenses. The COC may adopt above guidelines as suggested by us and to take appropriate decision for preparation of a resolution plan for the sake of revival of the Corporate Debtor Company, which is paramount interest and the main theme of the I & B Code.
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