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TMI Blog2019 (8) TMI 1849X X X X Extracts X X X X X X X X Extracts X X X X ..... achdeva, Ms. Sonali Khanna and Mr. Anshuman Chaturvedi, Advoates JUDGMENT SUDHANSU JYOTI MUKHOPADHAYA, J. ICICI Bank Limited filed application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') for 'Corporate Insolvency Resolution Process' against 'Gwalior Bypass Project Limited'- ('Corporate Debtor'). After hearing the Applicant-ICICI Bank Limited and 'Corporate Debtor', when the matter was reserved for orders, the Appellant - L&T Infrastructure Finance Company Ltd. filed a petition for intervention for impleadment as a party-Respondent. 2. The Adjudicating Authority (National Company Law Tribunal), Principal Bench, New Delhi by impugned order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement 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 The said sanction letter was later superseded and replaced by a modified sanction letter dated 10th December, 2014 towards subscription of non-convertible debentures ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved by NHAI of its rights and interests as accorded under the financing document, based on a pre-mature and unenforceable claim, the validity of which is disputed and pending adjudication before the Hon'ble Debt Recovery Tribunal - II, New Delhi in O.A. No.805/2016. It is stated that a notice has been issued in the said case to all the parties including the Appellant. 10. It was submitted that the impugned order has the effect of relegating the rights and interest of the Appellant to that of a minority financial creditor with 38.76% voting share, as opposed to 61.24% share of 2nd Respondent - ICICI Bank, blatantly disregarding Appellant's sole/ senior and secured lender status vis-à-vis the 'Corporate Debtor'. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 28. When it comes to a financial creditor triggeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or rejection of such application, as the case may be. 29. The scheme of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that the Adjudicating Authority is required to notice as to whether the application is complete or not and if there is debt and the 'Corporate Debtor' defaulted in payment and the amount is more than Rs.1 lakh, it is bound to admit an application under Section 7. Though, it is open to the 'Corporate Debtor' to object admission of application under Section 7 on the ground that the 'debt is not payable in law or in fact', but the application under Section 7 can be triggered even if the debt is disputed by the 'Corporate Debtor' and the amount of default is more than Rs.1 lakh. 15. As per the decision of this Appellate Tribunal in 'Innoventive Industries Limited vs. ICICI Bank & Anr. - (Company Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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