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TMI Blog2017 (8) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... provision in the code to convert a Section 9 application into a Section 7 application as prayed. On the contrary the Code provides that applications filed under section 7, 9 or 10, as the case may be should either be admitted or rejected in accordance with respective provisions. When the language of the code is clear and explicit the adjudicating authority has to give effect to it by adhering to the statutory requirements in toto. The provisions must be strictly followed substantially as well as procedurally. As made clear that in the present application filed under Section 9 of the Code neither there is any scope nor we have examined as to whether the applicant falls within the ambit of 'Financial Creditor'. Accordingly, leave is granted to the applicant to move under appropriate provisions of the Code, if so advised. In view of the discussions made above, once it is held that the applicant is not an 'Operational Creditor' and the debt in question not being 'operational debt', the present petition filed under Section 9 of the Code for initiation of corporate insolvency resolution Process is not maintainable and therefore rejected. - Company Petition No. (IB)-113(ND)/2017 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal amount, the Corporate Debtor paid only the escalated/appreciated price upon the aforesaid investment to the Applicant and once again sought an additional investment of an amount of ₹ 25,00,000 (Rupees Twenty Five Lakhs) from the Applicant in the aforesaid project on the pretext that it would refund the initial investment of ₹ 17,47,955 (Rupees Seventeen Lakhs Forty Seven Thousand Nine Hundred and Fifty Five Only) shortly. The Corporate Debtor assured to pay an interest at the rate of 37.33% p.a. on the amount of ₹ 25,00,000 (Rupees Twenty Five Lakhs). 6. The Applicant further invested an additional amount of ₹ 25,00,000 (Rupees Twenty Five Lakhs) vide Cheque No. 0026, dated 01.05.2014, drawn on HDFC Bank in the Corporate Debtor. A Buy Back Agreement dated 02.05.2014, inter alia, recording the aforesaid terms was also executed between the Corporate Debtor and the Applicant. The Corporate Debtor upon the Applicant's continuous requests, issued a cheque No. 00191 dated 11.06.2014 for an amount of ₹ 17,47,955 (Rupees Seventeen Lakhs Forty Seven Thousand Nine Hundred and Fifty Five Only) towards the initial principal amount due, which was dishon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived the unpaid operational debt, is dealt with under Section 9 of the Code. Subject to other conditions Sub-Section (5)(i)(b) of Section 9 of the Code provides that if there is no repayment of the unpaid operational debt the application under Section 9 can be admitted. Similarly the application under Section 9 shall be rejected under Sub-Section (5)(ii)(b) if there has been repayment of the unpaid operational debt. An application under Section 9 of the Code can be filed only by an 'Operational Creditor' in respect of the (operational debt). Therefore a perusal of Section 9 of the Code would show that in order to maintain an application as an 'Operational Creditor' the applicant has to satisfy the requirements of Section 5(20) and (21) of the Code. 11. The aforesaid expressions have been defined in section 5(20) (21) of the code respectively which envisages that:- 5. In this Part, unless the context otherwise requires,- (20) Operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred, (21) operational debt means a claim in respect of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall within the definition of 'Operational Creditor', his present application filed under section 9 for initiation of Corporate Insolvency process in respect of Corporate Debtor shall not be maintainable. Therefore once the applicant is not an 'Operational Creditor' and his claimed dues not being 'operational debt', the present petition filed under section 9 of the Code for initiation of Corporate Insolvency Resolution Process is not maintainable. 15. Ld. Counsel for the applicant before conclusion of the final arguments submitted that the applicant may be treated as a 'financial creditor' and leave may be granted under the Inherent Powers of the Tribunal to allow the applicant to file application under section 7 of the code in place and instead of the present application. It was emphasized that there has been clear admitted default by respondent corporate debtor and therefore is a fit case to use inherent power provided under Rule 11 of the NCLT Rules, 2016 to advance justice. The Ld. Counsel also relied upon the order passed by Hon'ble High Court of Delhi in the matter of Suman Kundra v. Sanjeev Kundra [Mat. Appeal No. 32/2009, dated 28-5-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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