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TMI Blog2021 (3) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... as the "Code"), praying for initiation of corporate insolvency resolution process of the corporate debtor, i. e., "Tripathi Hospital P. Ltd." on grounds of its inability to liquidate its financial debt. 2. As per averments made in the petition, Mr. D. K. Chaturvedi, a very fast friend of THPL (herein referred as "corporate debtor") has requested the petitioner for the loan in September, 2014, to help the corporate debtor for construction of their hospital and later the directors themselves requested the financial creditor for the loan amount as they needs funds in their company. 3. It is contended on behalf of the petitioner, who was present in person, that he is a superannuated Officer of the Armed Forces whose major part of the post re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his daughters marriage. After repeated request Dr. B. K Tripathi paid part of interest, i. e., Rs. 2.5 lakhs in November, 2017 but second cheque for part interest got dishonoured later DD of Rs. 2.5 lakhs as part interest was received. Thereafter many SMS/ WA messages and e-mails were also sent but the respondents has not paid back any amount. A joint criminal complaint was also filed, in which both the respondent approached the Allahabad High Court for quashing the FIR. But the hon'ble High Court found merit and substance in the FIR and ordered for continuation of case at District Court. Then the police filed charge sheet and warrant for appearance was issued but the respondent did not appear. 7. It is also contended that the directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is proposed to act as IRP and no disciplinary proceedings are pending against the proposed resolution professional ?" 10. From the perusal of the averments made in the application, it is observed that the applicant has failed to produce any document or agreement entered into between the parties regarding the debt which the applicant claim to have deposited in the account of the respondents. Further the applicant also has not filed any documents to prove as to what was agreed term of interest, which the applicant are entitled to get in case of default of payment. 11. Before considering the application it is necessary to consider whether the applicant have succeeded in establishing that the amount deposited by him comes under the definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account ; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution ; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause ;" 12. Mere plain reading of provisions shows that the financial debt means the debt along with interest, if any, which is disburse against the consideration for time value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the definition of financial debt under section 5(8) of the IBC. 15. It is regrettable that the major part of the post retired dues of a retired officer of the Armed Forces have been taken away like this as has been alleged but the petitioner has a legal remedy open to him by moving an appropriate forum for redressal of his grievances if he so chooses to do. 16. So for the reasons discussed above, it is of the view that the application filed under section 7 is not in accordance with the provision of law and is not complete, thus this application is not liable to be admitted. 17. Therefore, in this Adjudicating Authority is of the opinion that the applicant failed to bring on record the default recorded with the information utility or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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