TMI Blog2019 (8) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... point out that there is no debt payable in law or in fact or that the default has not been committed. It is also open to the 'Corporate Debtor' to take plea that the Applicant is not a 'Financial Creditor' or 'Operational Creditor'. The 'Corporate Debtor' may also settle the claim with the 'Financial Creditor' or 'Operational Creditor' before admission of an application under Section 7 or 9. The Appellant being not a Member/ Shareholder of the 'Corporate Debtor', and has claimed to be a 'Financial Creditor' of the 'Corporate Debtor' has no right to intervene to oppose admission of the application under Section 7 preferred by the ICICI Bank against the 'Corporate Debtor'. After admission of the application under Section 7, if the Appellant claims that it is one of the 'Financial Creditor', it can file claim before the 'Resolution Professional', but it cannot challenge the order of admission in absence of any challenge by the 'Corporate Debtor', on the ground that it has first charge on the asset of the 'Corporate Debtor' or has superior claim over the claim of the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2006, a Concession Agreement was executed between NHAI and 'Corporate Debtor' for construction, development, operation and maintenance, in terms of which the concessionaire was barred from creating any encumbrance, lien or from creating any rights or benefits under this Agreement or any Project Agreement except with prior consent in writing from NHAI. 7. Further, case of the Appellant is that the 'Corporate Debtor' approached the Appellant L T Infrastructure Finance Company Ltd. for re- financing the erstwhile loan advanced by IDFC (erstwhile lender) by subscribing to secured, rated, redeemable, non-convertible debentures proposed to be issued by the 'Corporate Debtor', which was sanctioned vide letter dated 12th March, 2014 issued by the Appellant for subscribing non- convertible debentures aggregating to Rs.260 crores. 8. The said sanction letter was later superseded and replaced by a modified sanction letter dated 10th December, 2014 towards subscription of non-convertible debentures aggregating to Rs.241.55 crores. Thereafter, on 24th December, 2014, a Debenture Trust Deed was executed between the 'Corporate Debtor' and Trustees (IL FS) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file an application under Section 7 of the I B Code for initiating 'Corporate Insolvency Resolution Process' against the 'Corporate Debtor', if the 'Financial Creditor' owes debt and the 'Corporate Debtor' defaults in payment. 13. In the case of Innoventive Industries Ltd. v. ICICI Bank, - (2018) 1 SCC 407], the Hon'ble Supreme Court while dealing with the application under Section 7, 8 and 9 of the I B Code observed: - 27. The scheme of the Code is to ensure that when a default takes place, in the sense that a debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. For the meaning of debt , we have to go to Section 3(11), which in turn tells us that a debt means a liability 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 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or rejection of such application, as the case may be. 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing--i.e. before such notice or in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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