2019 (9) TMI 1410

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.... M/s 'Tricolite Electrical Industries Ltd.' ('Operational Creditor') filed application u/s 9 of the Insolvency & Bankruptcy Code, 2016 ('I&B' Code, for short) against M/s. 'HBN Homes Colonisers Private Limited' ('Corporate Debtor'). The Adjudicating Authority ('National Company Law Tribunal') Court No. IV, New Delhi by Impugned order dated 24th July, 2019 having admitted the same. The appeal has been preferred by Appellant - shareholder. 2. Learned counsel for the Appellant submits that the claim is 'barred by limitation' and in fact no amount was payable. However, from the record, we find the following facts emerge. 3. The Respondent ('Financial Creditor') raised various invoices of the 'Corporate Debtor' to the tune of Rs. 3,21,24....

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.... along with interest of Rs. 36,73,378/- @ 18% as on 30.09.2017, totalling to a sum of Rs. 95,01,856/- is still payable. 6. Demand Notice u/s 8(1) was issued by the Respondent - 'Operational Creditor' on 25th October, 2017 which is the reason the Appellant has taken plea that the claim is 'barred by limitation.' 7. However, from the record, we find that the Appellant - 'Operational Creditor' issued Legal Notice u/s 271 of Companies Act, 2013 within the period of limitation on 20th May, 2015 to the 'Corporate Debtor' to pay outstanding amount of Rs. 58,28,478/- along with 18% interest with clear understanding that if payment is not made winding up proceedings will be filed against 'Corporate Debtor'. The 'Corporate Debtor' replied to th....

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....ered 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 opposed to this, an operational creditor means a person to whom an operational debt is owed and an operational debt under Section 5(21) means a claim in respect of provision of goods or services. ....

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....ity 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. Under subsection (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such applic....