TMI Blog2019 (3) TMI 1868X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of debt is to be decided by the civil court and unless the outcome of the civil suit is reached, the claim of the petitioner is sub judice, and cannot be said to be due. For a petition under section 7 of the I and B Code as per the judgment of the hon'ble Supreme Court in the matter of Innoventive Industries Ltd. v. ICICI Bank [ 2017 (9) TMI 58 - SUPREME COURT] this Tribunal needs to be satisfied that the debt , which may also include a disputed claim, is due. Debt may not be due if it is not payable in law. If this Tribunal is satisfied that the debt is not due, then it may reject the petition. This Tribunal is of the view that the claim of the petitioner is contingent upon the final decision of the civil suit and unless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letters are attached with the petition. 3. The petitioner sent a winding up a notice to the corporate debtor on October 23, 2007 demanding repayment of ₹ 10,00,000. Subsequently, the petitioner filed a winding up petition before the hon'ble Bombay High Court wherein the hon'ble High Court disposed the petition in view of the consent terms agreed between the parties, directing, inter alia, that the petitioner shall file a civil suit for recovery of the amount claimed before a competent court of law that shall decide the dispute regarding the amount claimed. The said order of the hon'ble High Court is reproduced below : 4. On perusal of the order of the hon'ble High Court as reproduced above it is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In light of the above facts, it is clear that the existence of debt is to be decided by the civil court and unless the outcome of the civil suit is reached, the claim of the petitioner is sub judice, and cannot be said to be due. 9. For a petition under section 7 of the I and B Code as per the judgment of the hon'ble Supreme Court in the matter of Innoventive Industries Ltd. v. ICICI Bank [2017] 205 Comp Cas 57 (SC) ; [2018] 1 SCC 407 this Tribunal needs to be satisfied that the debt , which may also include a disputed claim, is due. Debt may not be due if it is not payable in law. If this Tribunal is satisfied that the debt is not due, then it may reject the petition. The relevant portion of the judgment is reproduced below (page 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the 'debt', which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 10. As observed above this Tribunal is of the view that the claim of the petitioner is contingent upon the final decision of the civil suit and unless the same is decided the debt of the petitioner cannot be said to be in existence and due. 11. In the absence of debt due, there is no question of default in repayment of debt, and hence this petition is liable to be rejected. Order The petition being filed under section 7 of the I and B Code against Maberest Hotels P. Ltd., corporate debtor, for initiating corporate insolvency resolution process (CIRP) is rejected. We have not expressed any opinion on the merit of the claim of the petitioner, and it is open for the petitioner to raise its claim before the competent autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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