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TMI Blog2018 (8) TMI 2056X X X X Extracts X X X X X X X X Extracts X X X X ..... plication to Adjudicating Authority) Rules, 2016 (hereinafter as Rules) in the capacity of "Financial Creditor" on 13.12.2017 by invoking the provisions of Section 7 of the Insolvency and Bankruptcy Code (hereinafter as Code). 2. Further under the head "Particulars of Corporate Debtorth the description of the debtor is stated as "M/s. Doshion Water Solutions Private Limited' (hereinafter as Debtor) having Registered office at, Office No. 3, 2thFloor, A - Wing. Godrej Coliseum, Eastern Express Highway, Behind Everard Nagar, Sion (W), Mumbai, Maharashtra 400022. 3. In the requisite Form, under the head "Particulars of Financial Debt" the total amount of Debt in default is stated as 2 133,69,60,093/- as on 30.09.2017 as summarised below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 to 30.09.2017 the Debtor has made default in making the re-payment towards the availed amount. 5.3. It is further stated that the Account of the Debtor has become NPA on 31.08.2015 as per the guidelines of the RBI. 5.4. It is further stated that the Financial Creditor has issued a first Demand Notice to the Debtor on 06.04.2016 for repayment of Debts. It is also stated that the Debtor vide its letter dated 16.05.2016 had replied to the said notice stating therein that the Debtor may be invited by the Financial Creditor to negotiate the terms of settlement. Copies of the notice and reply are annexed with the Petition / Application. 5.5. It is further stated that thereafter there is nothing much happened progressively. despite of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d this Petition / Application before this Bench. 5.11. t is further stated that though the JLF meeting records for terms and conditions for restructuring of debt nothing had been acted upon by the Financial Creditor or any other Bank hence, it is not a case that the Debt has been restructured and therefore as on date there is Debt lying with the Debtor in terms of S. 5 (8) of the Code and hence this Petition / Application deserves to be Admitted and the CIRP may be commenced upon the Debtor. 6. Submissions by the Corporate Debtor : 6.1. The Learned Counsel for the Corporate Debtor firstly has raised the issue of the maintainability of this Application under provisions of the Code. 6.1. It is submitted that on 16.01.2014 the Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um and the Debtor Company the Debt does not survives and this Petition / Application deserves to be Rejected. 7. Findings : 7.1. I have gone through the facts and circumstances of the case and also through the submissions made by both the Learned Advocates. 7.2. Before discussing further it is noteworthy to place certain facts on record. During the hearing it is noticed that, in recent past the Hon'ble Bombay High Court had passed an order for winding-up against the Debtor Company U/s. 433 (e) and 434 of the Companies Act, 1956 vide an Order dated 16.03.2018. Thereafter an improvement has occurred and the Hon'ble Bombay High Court vide an Order dated 09.05.2018 has recorded that the Order of 16.03.2018 stands set aside and the Debtor C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also evident from the order of DRT, Ahmedabad. Further the reply to the Demand notice of the Financial Creditor also evident that the Debtor has not repaid the loan amount and there is a default in repayment. 7.8. Hence, keeping the facts and submissions in mind this Bench has come to conclusion that, the nature of Debt is a "Financial Debt" as defined under section 5 (8) of the Code. Further, admittedly there is a "Default" as defined under section 3 (12) of the Code on the part of the Corporate Debtor. 7.9. On the basis of the evidences on record the Financial Creditor has established that the loan was sanctioned and duly disbursed to the Corporate Debtor but there is non-payment of the Balance Debt on the part of the Corporate Debtor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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