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2018 (2) TMI 2136 - Tri - IBCMaintainability of application - initiation of CIRP - Corporate Debtor qualifies as a Financial Debt under the Insolvency and Bankruptcy Code (IBC) or not - HELD THAT - The nature of Debt is a Financial Debt as defined under section 5 (8) of the Code. It has also been established that admittedly there is a Default as defined under section 3 (12) of the Code on the part of the Corporate Debtor. On the basis of the evidences on record it is noticed that the Creditor has sanctioned the loan and duly disbursed to the Debtor but there is non- payment of Debt on the part of the Debtor. Application u/s 7 of the Code is perused and it is noticed that this Application is complete in all respect of the Code and Rules therein. The consent form from the proposed IRP i.e. Form - 2 is perused and it is satisfied that there is no disciplinary proceeding pending against the proposed IRP. Conclusion - Keeping admitted facts in mind that the Creditor had not received the outstanding Debt from the Debtor and when the default is admitted by the Debtor itself it is concluded that this Petition/Application deserves Admission . Petition admitted.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment include:
ISSUE-WISE DETAILED ANALYSIS 1. Qualification of Debt as "Financial Debt" Relevant legal framework and precedents: The definition of "Financial Debt" is provided under Section 5(8) of the IBC. A financial debt is a debt along with interest, if any, which is disbursed against the consideration for the time value of money. Court's interpretation and reasoning: The Tribunal examined the nature of the debt, which was established through various sanction letters and agreements between the Creditor and the Debtor. The Tribunal concluded that the debt in question qualifies as a "Financial Debt" under the IBC. Key evidence and findings: Evidence included sanction letters detailing the fund-based and non-fund-based facilities provided to the Debtor and the Deed of Mortgage executed between the parties. Application of law to facts: The Tribunal applied the definition of "Financial Debt" to the facts, noting that the loans were disbursed with the expectation of repayment with interest, thus meeting the criteria under Section 5(8). 2. Existence of "Default" Relevant legal framework and precedents: "Default" is defined under Section 3(12) of the IBC as the non-payment of a debt when it has become due and payable. Court's interpretation and reasoning: The Tribunal found that the Corporate Debtor had indeed defaulted on its repayment obligations, as evidenced by the classification of the account as a Non-Performing Asset (NPA) and the issuance of a Loan Recall Notice. Key evidence and findings: The Tribunal considered the Loan Recall Notice dated 31.03.2017 and the classification of the Debtor's account as an NPA on 11.12.2013. Application of law to facts: The Tribunal concluded that the Debtor's failure to repay the debt, as admitted by the Debtor and evidenced by the Creditor, constituted a "Default" under the IBC. 3. Completeness of the Application under Section 7 of the IBC Relevant legal framework and precedents: Section 7 of the IBC outlines the process for a financial creditor to initiate the Corporate Insolvency Resolution Process (CIRP) by filing an application with the Adjudicating Authority. Court's interpretation and reasoning: The Tribunal reviewed the application and found it complete in all respects, including the necessary documentation and the consent form from the proposed IRP. Key evidence and findings: The Tribunal noted that the application included all required details and documentation, including Form No. 1 under Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Application of law to facts: The Tribunal determined that the application met the statutory requirements, allowing for its admission. 4. Post-Admission Steps: Appointment of IRP and Moratorium Relevant legal framework and precedents: Upon admission of an application under Section 7, the Tribunal is required to appoint an IRP and declare a Moratorium as per Sections 13 and 14 of the IBC. Court's interpretation and reasoning: The Tribunal appointed Ms. Charu Sandeep Desai as the IRP and declared a Moratorium, prohibiting certain actions against the Debtor and ensuring the continuation of essential services. Key evidence and findings: The Tribunal relied on the consent form from the proposed IRP and the absence of any disciplinary proceedings against her. Application of law to facts: The Tribunal followed the statutory procedure, appointing the IRP and declaring a Moratorium to facilitate the CIRP. SIGNIFICANT HOLDINGS Preserve verbatim quotes of crucial legal reasoning: "Considering the above facts, we came to conclusion the nature of Debt is a 'Financial Debt' as defined under section 5 (8) of the Code. It has also been established that admittedly there is a 'Default' as defined under section 3 (12) of the Code on the part of the Corporate Debtor." Core principles established: The judgment reinforces the principles that define "Financial Debt" and "Default" under the IBC and the procedural requirements for admitting an application under Section 7. Final determinations on each issue: The Tribunal concluded that the debt qualifies as a "Financial Debt," there is a "Default," the application is complete, and the CIRP should commence with the appointment of an IRP and the imposition of a Moratorium.
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