2019 (7) TMI 1128

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..... Subsequently by order dated 13th December, 2018, the Adjudicating Authority (National Law Company Tribunal), Kolkata Bench while held that the Respondent is a 'Financial Creditor', also allowed the Respondent to change the format for treating application under Section 7. 2. Learned counsel for the Appellant submits that application under Section 9 cannot be changed to that of Section 7. However, we are of the view that for the purpose of application under Section 7 in the Form-1 no advance notice or demand notice is required to issue, like Section 8(1) notice. In such case, it is always open to the parties to file Format-1 i.e. application under Section 7 after serving a copy of the same to the other side. It is not in dispute that afte....

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.... obligation in respect of a "claim" and for the meaning of "claim", we have to go back to Section 3(6) which defines "claim" to mean a right to payment even if it is disputed. The Code gets triggered the moment default is of rupees one lakh or more (Section 4). The corporate insolvency resolution process may be triggered by the corporate debtor itself or a financial creditor or operational creditor. A distinction is made by the Code between debts owed to financial creditors and operational creditors. A financial creditor has been defined under Section 5(7) as a person to whom a financial debt is owed and a financial debt is defined in Section 5(8) to mean a debt which is disbursed against consideration for the time value of money. As oppose....

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....vidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the "debt", which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. ....