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2022 (10) TMI 432 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCHMaintainability of petition - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- It is an undisputed fact that both the parties with a view to settle the matter has entered into an OTS scheme vide letter dated 23.11.2021. Wherein the OTS amount shall be paid on or before 31.03.2022 by the Corporate Debtor. However, the Corporate Debtor vide letter dated 29.11.2021 to the Financial Creditor proposes the amount to be paid up to June, 2022 and the same was rejected by the Financial Creditor via Email dated 30.11.2021. The Corporate Debtor via letter dated 31.12.2021 has accepted to make the payment under the OTS scheme up to March 2022 which was rejected by the Petitioner, citing the Sanction Letter can be issued only after the receipt of Credit Information Report of the other lender ACRE - the Corporate Debtor vide letter dated 26.04.2022, proposes to settle the dues outstanding by One Time Settlement by offering the sum of Rs. 2.66 Crores towards the Principal Dues and committed to pay the OTS sum before 31.03.2023. The same was rejected by the Petitioner vide the letter dated 28.04.2022, stating that the OTS proposal is only towards principal dues and does not address interest, further interest, penal interest and other cost and charges and advised that the application is not received in prescribed format before the last date i.e. 31.12.2021. It is to be noted that the settlement is derived between the parties only upon the acceptance by the parties, which is not in the present case. Hence, the Bench has come to a conclusion that the Corporate Debtor is liable and defaulted in making the payment to the Petitioner - the nature of Debt is a “Financial Debt” as defined under section 5 (8) of the Code. It has also been established that there is a “Default” as defined under section 3 (12) of the Code on the part of the Debtor. The two essential qualifications, i.e., existence of ‘debt’ and ‘default’, for admission of a petition under section 7 of the I&B Code, have been met in this case. Besides, the Company Petition is well within the period of limitation. It is clear that the Corporate Debtor has defaulted in repayment of debt. Hence, owing to the inability of the Corporate Debtor to pay its dues, this is a fit case to be admitted u/s 7 of the I&B Code - it is found that the Petitioner has not received the outstanding Debt from the Corporate Debtor and that the formalities as prescribed under the Code have been completed by the Petitioner, this Petition deserves ‘Admission’. Petition admitted - moratorium declared.
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