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2021 (9) TMI 362 - AT - Insolvency and BankruptcyJurisdiction - power of Adjudicating Authority to adjudicate the matter under the I & B Code - Respondent/Applicant is neither a Financial Creditor nor an Operational Creditor - debt and default existing in terms of the I & B Code or not - case of Appellant is that there is no provision for return of money together with interest under the Share Purchase Agreement between the parties and therefore, the Respondent is not a Financial Creditor viz-a-viz the Appellant - HELD THAT:- The essence of any debt to be described as financial debt is the time value of money as Borrowing is a name for money transaction. The word debt is applicable to a sum of money which has been promised at a future day as against a sum nor due and payable. In fact, a sum of money which is certainly and in all events payable is a debt, in regard to the fact whether it is payable now or at a future date - Under the I&B Code, 2016 the shift is from inability to pay to an existence of default. No doubt, the Adjudicating Authority is not required to decide the amount of default. Even if a debt is disputed, if the same is more than ₹ 1,00,000/- then the application filed under Section 7 of the Code is maintainable in Law. The actuality of debt was proven by virtue of the concerned terms which formed part of the order of the Adjudicating Authority dated 24.09.2020. When a Settlement was arrived at between the parties, it is the pre-module duty of the Corporate Debtor to effect payments proposed by virtue of the Settlement after committing default, the Appellant cannot take altogether different stand, especially when the tenor and spirit of Share Purchase Agreement was not adhered to - when the Appellant had promised to repay the advanced sum paid by the Respondent/Applicant to it, then there is not only a violation of the Share Purchase Agreement dated 21.11.2012 but also the non-payment of amounts comes squarely under definition of Section 5(8) of the I&B Code pertaining to Financial Debt. In the instant case, it is quite clear that the order admitting the application under Section 7 of the Code, filed by the Respondent/Applicant has not been assailed by the Appellant. In fact, in the Impugned Order dated 30.03.2021 passed by the Adjudicating Authority in IBA/13/KOB/2020 whereby and whereunder the application filed by the Respondent/Applicant was admitted, the said Adjudicating Authority came to the conclusion that the Respondent/Applicant had proved the existence of a debt as well as existence of default and had discussed in detail about the same in the order dated 25.08.2020, which speaks for itself. This Tribunal comes to an inevitable and inescapable cocksure conclusion that the aforesaid promise comes squarely within the ambit of definition of ‘Financial Debt’ and that the Respondent/Applicant is without any haziness is a Financial Creditor in the eye of Law - Suffice it for this Tribunal to pertinently point out that the Appellant/Corporate Debtor had not adhered to its ‘commitment’ in respect of Share Purchase Agreement dated 21.11.2012 and had not paid the amount admittedly, especially in the teeth of the fact that the ‘debt’ due arises out of the said Share Purchase Agreement. The Impugned Order passed by the Adjudicating Authority (National Company Law Tribunal, Kochi Bench, Kerala) in admitting the Application IBA/13/KOB/2020 does not suffer from any material irregularity or patent illegality in the eye of law - Appeal dismissed.
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