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2022 (8) TMI 230 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtors failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - whether the Respondents claim fall within the category of Financial Creditors and whether there exists a debt and any default occurred there at? - HELD THAT - In the present case, admittedly, the Respondents are the Financial Creditors within the meaning of sub-section (7) of Section 5 of the I B Code, 2016 and the debt borrowed by the Corporate Debtor is a financial debt within the meaning of sub-section (8) of Section 5, which establishes from the loan agreements all dated 04.12.2019 and from the information utility record. Admittedly, the debt has not been repaid to the Financial Creditors - The Learned Counsel for the Appellant contend that there is a collusion between the Respondents/Financial Creditors and the Corporate Debtor is concerned, the NCLT s being the Adjudicating Authorities under the IBC and exercising its summary jurisdiction, cannot go into the aspect of collusion, fraud etc. The Adjudicating Authority (NCLT s) couched with the powers to be exercisable as enshrined in the I B Code, 2016. For the purpose of entertaining Sections 7, 9 or 10, of the I B Code, the Adjudicating Authority has to see whether debt is payable on the part of the Corporate Debtor and committed default. In such cases, the Adjudicating Authority invariably admit the application under the above provisions of law. This Tribunal is of the view that in the present case, the debt and default has been proved and the Adjudicating Authority rightly admitted the Application under Section 7. The debt has been proved from the documents available on records including information utility and the default has occurred in clear terms - appeal dismissed.
Issues Involved:
1. Whether the Respondents qualify as Financial Creditors under the I&B Code, 2016. 2. Whether there exists a debt and if any default occurred. 3. Allegations of collusion and fraud by the Respondents. 4. The applicability of penalties under Section 65 of the I&B Code, 2016. 5. Admissibility of the application for initiation of CIRP under Section 7 of the I&B Code, 2016. Issue-wise Detailed Analysis: 1. Whether the Respondents qualify as Financial Creditors under the I&B Code, 2016: The Tribunal examined the loan agreements dated 04.12.2019, which were executed between the Respondents and the Corporate Debtor. It was observed that the loan agreements specified the amounts and repayment terms, confirming the Respondents as Financial Creditors. The agreements were signed by both parties, and the National e-Governance Services Limited's records corroborated the financial transactions. The Tribunal concluded that the Respondents are Financial Creditors as per Section 5(7) and 5(8) of the I&B Code, 2016. 2. Whether there exists a debt and if any default occurred: The Tribunal reviewed the financial debt amounting to Rs.34,73,54,802/- and noted that the debt was to be repaid by 31.12.2019. The default was established through the loan agreements and the certificate from the National e-Governance Services Limited. The Tribunal confirmed that the debt and default were substantiated by the records, fulfilling the criteria under Section 3(11) and 3(12) of the I&B Code, 2016. 3. Allegations of collusion and fraud by the Respondents: The Appellants alleged that the loan agreements were executed fraudulently and with malicious intent. However, the Tribunal held that the NCLT, exercising its summary jurisdiction, cannot delve into allegations of collusion or fraud. The primary focus is on whether the debt is payable and if a default has occurred. The Tribunal found no substantial evidence to support the claims of collusion and fraud. 4. The applicability of penalties under Section 65 of the I&B Code, 2016: The Appellants argued that the initiation of CIRP by the Respondents was with malicious intent and should be penalized under Section 65 of the I&B Code, 2016. However, the Tribunal did not find any merit in this argument, as the debt and default were clearly established. The Tribunal emphasized that the Adjudicating Authority's role is to verify the existence of debt and default, not to investigate the intent behind the initiation of CIRP. 5. Admissibility of the application for initiation of CIRP under Section 7 of the I&B Code, 2016: The Tribunal upheld the Adjudicating Authority's decision to admit the application under Section 7 of the I&B Code, 2016. The Adjudicating Authority had relied on Section 7(5)(a) of the Code, which mandates admitting the application if a default is established, the application is complete, and there are no disciplinary proceedings against the proposed Resolution Professional. The Tribunal found that all these conditions were met, and the application was rightly admitted. Conclusion: The Tribunal concluded that the debt and default were proven, and the Respondents qualified as Financial Creditors. The allegations of collusion and fraud were dismissed due to lack of evidence. The application for initiation of CIRP under Section 7 was found to be admissible. Consequently, the Appeal was dismissed, and the order of the Adjudicating Authority was upheld.
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