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TMI Blog2022 (8) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is malicious intent and liable to be penalised under Section 65 of the I B Code, 2016. 4. Further, the Learned Counsel submitted that the Learned Adjudicating Authority failed to examine whether the transaction in question establishes the financial debt as mentioned under Section 5(7), 5(8) and 7 of the I B Code, 2016 or not. The Learned Adjudicating Authority miserably failed to look into the fact that the Respondents did not produce any documents/bank entries to substantiate that they being Financial Creditors are transferred the loan amount to the Corporate Debtor bank account. The Respondents during their tenure as Directors of the Company availed the loan under the Tripartite Agreement for themselves. From the funds derived therein the Respondents have disbursed the above-mentioned loan amount in favour of Respondent No.10 (Corporate Debtor). The sole purpose of the Respondents is to liquidate the Corporate Debtor. 5. The Learned Counsel for the Appellants relied upon the judgments in support of their case and prayed this Bench to allow the Company Appeal by setting aside the impugned order. Respondent s Submissions: 6. The Respondents filed their Notes of Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B Code, the Code does not put an obligation on the part of the Financial Creditor to issue a notice mandatorily before filing an application under Section 7 of the Code to initiate CIRP against the Corporate Debtor. 10. It is submitted that the Respondents have approached the Hon ble Adjudicating Authority after about 2 years from the date of agreement and after lapse of time as provided in the agreement between the parties giving the Corporate Debtor ample time to pay back the debts owed to the Respondents. 11. In view of the reasons as stated above the Learned Counsel prayed this Bench to dismiss the Appeal as not maintainable. Analysis / Appraisal: 12. Heard, the Learned Counsel appeared for the respective parties, perused the pleadings, documents and citations relied upon by them. After analysing the pleadings, the point for consideration is whether the Respondents claim fall within the category of Financial Creditors and whether there exists a debt and any default occurred there at. 13. The Learned Adjudicating Authority vide its order dated 07.03.2022 admitted the Application filed by the Respondents/Financial Creditors and initiated CIRP by imposing morat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Page 247, Volume-II of paper book. The said record of financial information maintains by the National e-Governance Services Limited is an information utility, governs under Chapter-V of the I B Code, 2016. According to Section 213 of the I B Code, 2016 an information utility shall provide such services as may be specified including core services to any person if such person complies with the terms and conditions as may be specified by regulation. Section 214 prescribes Obligations of Information Utility, which states as under: For the purposes of providing core services to any person, every information utility shall a) Create and store financial information in a universally accessible format. b) Except electronic submissions of financial information from persons who are under obligations to submit financial information under sub-Section 215 in such form and manner as may be specified by Regulation. c) . d) e) f) Provides access to the financial information stored it by any person who intends to access such information in such manner as may be specified by regulations. g) h) 15. In this regard, it is relevant to mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 21. 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. 22. The Hon ble Supreme Court in the matter of Innoventive Industries Limited Vs. ICICI Bank reported in (2018) 1 SCC 407 at Para 30 held as under: On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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