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2021 (3) TMI 297 - NATIONAL COMPANY LAW TRIBUNAL JAIPUR BENCHMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - only contention of the corporate debtor is that since the applicant itself asked respondent to cancel the allotment and refund the principal amount, therefore the applicant ceased to exist as an allottee of the corporate debtor - existence of debt and default or not - HELD THAT:- Since the amount has been raised from the applicant/allottee under a real estate project, not only the debt has a commercial effect of borrowing and comes within the scope of "financial debt" but also the applicant comes within the definition of "financial creditor" - Accordingly, the applicant being a financial creditor can invoke corporate insolvency resolution process under section 7 of the Code against the respondent-corporate debtor in case of default in repayment of financial debt. The present application under section 7 of the Code for initiation of CIRP has been filed by the applicant/financial creditor in form 1 in terms of rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 accompanied with required information, documents and records as prescribed under the Rules. Existence of debt and default or not - HELD THAT:- In the present case neither the possession of the flats has been given to the applicant nor the corporate debtor has returned even the amount collected from the applicant since the year 2014. It is pertinent to mention here that the corporate debtor in its reply has itself admitted that ₹ 2,48,88,466 is still due and payable to the applicant out of the amount paid by applicant for the said allotment. There is thus sufficient material on record to conclude that the respondent/corporate debtor has committed default in repayment of the financial debt - There is no denial of default and the amount of default exceeds much more than ₹ 1,00,000. Once there is a debt and default and the application is complete, the Adjudicating Authority is bound to admit the application preferred under section 7 of the Code. Though considerable period has since lapsed, the possession of the space has not been given to the applicant. Even the principal amount disbursed has not been repaid by the respondent/corporate debtor. It is accordingly reiterated that respondent/corporate debtor has committed default in repayment of the outstanding financial debt which exceeds the statutory limit of ₹ 1,00,000. Besides it is also seen that the application filed in form 1 under section 7 of the Code read with rule 4 of the Rules is complete and there is no infirmity in the same - application admitted - moratorium declared.
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