2021 (11) TMI 606 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT - From the conjoint reading of para 12 and 13, it is found that in the instant case, the amount has been released pursuant to the Agreement dated 25.03.2019 in the form of Security Deposit and the same is interest bearing, which means it is carrying consideration of time value of money having commercial effect of a borrowing. Therefore, the debt claimed is a Financial Debt within the definition of Section 5(f) of IBC, 2016. The petitioner is directed to issue notice upon the Corporate Debtor by all modes as to why the CIR process shall not be initiated against it. List the matter on 29.10.2021 - petition is maintainable.

Summary

Issues:
- Maintainability of the Application under Section 7 of IBC, 2016
- Whether the amount claimed by the Applicant is covered under the definition of "Financial Debt"?

Analysis:
1. The petition was filed under Section 7 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the Corporate Insolvency process against the Corporate Debtor, a company incorporated under the Companies Act 1956.

2. The application was initially dismissed for default due to non-appearance of the Applicant. However, restoration was allowed later, and the matter was heard on the issue of maintainability under Section 7 of IBC, 2016 and the classification of the claimed amount as "Financial Debt."

3. The Applicant contended that a deposit paid to the Corporate Debtor, bearing interest, falls within the ambit of "Financial Debt" as per Section 5(8)(f) of the Code. Reference was made to the Agreement and relevant judicial pronouncements to support this argument.

4. The Financial Creditor argued that the interest-bearing deposit paid to the Corporate Debtor qualifies as a "Financial Debt" under Section 5(8)(f) of IBC, 2016, citing relevant legal provisions and a judgment from NCLAT.

5. The Tribunal examined the Agreement and the definition of "Financial Debt" under Section 5(8) of IBC, 2016. It concluded that the amount released as a Security Deposit, bearing interest, satisfies the criteria of a "Financial Debt" considering the time value of money and commercial effect of borrowing.

6. Consequently, the Tribunal found the petition maintainable and directed the petitioner to issue notice to the Corporate Debtor for initiating the Corporate Insolvency Resolution process, with the next hearing scheduled for a specific date.

7. It was clarified that the decision does not imply an opinion on the case's merits and does not prevent the Corporate Debtor from presenting its defense in the proceedings.

This detailed analysis highlights the key arguments, legal interpretations, and the Tribunal's decision regarding the maintainability of the application and the classification of the claimed amount as a "Financial Debt" under the relevant provisions of the Insolvency and Bankruptcy Code, 2016.