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2020 (7) TMI 297 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - HELD THAT:- Taking into consideration cumulatively clause ‘8 and 9’ of the Franchise Agreement, a sum of ₹ 65 lakhs being an investment on which guaranteed ROI was also promised is required to be treated as a 'financial debt' and that the payment of said 'financial debt' which stood defaulted and hence this Petition will lie before this Tribunal under IBC, 2016 in view of the ROI promised month after month being a consideration for time value to money not being remitted by the Corporate Debtor and in the circumstances the debt will be considered as 'financial debt' falling within the confines of Section 5 (8) (f) of IBC, 2016 and the Petition is hence maintainable before this Tribunal and the jurisdiction of this Tribunal to entertain this Petition cannot be questioned by the Corporate Debtor. The Franchise Agreement is to be read "as a whole in its entirety" which enjoins upon the parties their respective duties and obligations as well as their rights. As rightly pointed out by Counsel for the Corporate Debtor the Franchise Agreement or for that matter any document which the parties have chosen to rely on, cannot be read in "piecemeal" and has to be read "as a whole" which is a well established legal principle - It is also further seen that the responsibility of running the Store, even though clauses in relation to the same was heavily relied upon by the Counsel for the Petitioner is placed upon the Franchisor, it is required to be seen that the said clauses when Franchise Agreement read as a whole is provided more as a protective measure with a view to protect its trade name and mark and also normally order to have a uniformity and consistency in relation to the Stores operated at several places including the one in the present one and in the circumstances the said clauses cannot be read in isolation viz., 9.1. The standard as prescribed in relation to the quality, quantity or otherwise taking into consideration the expectancy of the user public when the trade name "Fipola" is associated any adverse usage by the Franchisee will be only detrimental to the trade name of the Franchisor as well as in relation to the Franchise and as already pointed out is o protective measure in relation to its 'trade name' permitted to be utilized by the Financial Creditor - It is also required to be noted that all 'claims' as defined under the provisions of IBC, 2016 namely under Section 3 (6) cannot lead to the filing of a Petition under the provisions of IBC, 2016 in relation to the Corporate Debtor as a 'financial debt' or as an 'operational debt' unless the conditions as provided under Section 5 (8) or 5 (20) as the case may be is satisfied by the Petitioner approaching this Tribunal. The claim cannot be treated as a 'financial debt' and the Petitioner cannot be treated as a 'Financial Creditor' as defined under Section 5 (8) and 5 (7) of IBC, 2016 respectively - Petition dismissed.
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