TMI Blog2019 (5) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... With Company Appeal (AT) (Insolvency) No. 498 of 2018 - - - Dated:- 23-4-2019 - Mr S. J. Mukhopadhaya, Chairperson And Mr Bansi Lal Bhat, Member (Judicial) For The Appellant : Mr. Sushil Gupta, Mr. Ashok Kumar Goel, Mr. Rishi Singh, Mr. Atishay K. Prasad, Advocates For The Respondent : None JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. In both the appeals, as Appellant is common and on common ground applications filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) have been rejected, they were heard together and are being disposed of by this common judgment. Company Appeal (AT) (Insol.) No. 497 of 2018 2. This appeal has been preferred against the order dated 31st May, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, in (IB) No. 515/ND/2017, rejecting the application preferred by the Appellant- ( Financial Creditor ) under Section 7 of the I B Code . 3. The Appellant- IFCI Limited filed petition for initiation of Corporate Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclosed in the paper book of the appeal. 7. For default of payment by M/s. Cedar Infonet Private Limited , the Appellant- IFCI Limited filed an application under Section 7 of the I B Code which was dismissed by the Adjudicating Authority on the ground that substantial part of the loan is repaid and no delinquencies are reported in the CIBIL Report. 8. Learned counsel appearing on behalf of the Appellant submitted that the Adjudicating Authority has grossly erred in concluding that as the substantial portion of debt was recovered and, therefore, the Appel was not maintainable. It was submitted that under the provisions of the I B Code , what is required for maintaining the Insolvency Petition is the default of more than ₹ 1 Lakh and in the present case admittedly, the default is more than ₹ 12 Crores, which is a substantial amount to be paid by the Corporate Debtor . 9. It is further submitted that the Appellant has not willfully suppressed any information from the Adjudicating Authority as the sale of pledged shares is a matter of historic event which took place and the amount claimed in the petition is only after g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2.1. Irrespective of anything contained in this Agreement, on invocation of pledge, the shares comprised in the Collateral will not become the property of the Lender, even though transferred or Credited to the account of the Lender with the Depository. The Lender will not be required to acquire any such shares in their own individual account or on account of any funds or client accounts that are managed by the Lender. 3.2.2. The economic risk attached to the said shares comprised in the Collateral (including due variations in market price) will continue to be the account of the Pledgor until such time as they are actually sold to a third person. 3.2.3. Any appreciation and/or depreciation in the price of the said shares between the time of invocation and the sale of such shares will continue to be to the account of the Pledgors. 16. The aforesaid clause makes it clear that it is date of sale of share which matters and not the date of invocation. Further due credit has been given in respect of sale of share which is reflected at page nos. 130 and 137 of the paper book of the Summary of outstanding amount, where the under-not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of obligation in respect of a claim and for the meaning of claim , we have to go back to Section 3(6) which defines claim to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. xxx xxx xxx 30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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