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Damji Ramji Shah vs Edelweiss Asset Reconstruction ...

National Company Law Appellate Tribunal10 April 2023Ashok Bhushan

Ratio decidendi

The rule this decision rests on

An assignee of a financial debt, where the trust deed under which it holds the financial assets expressly empowers it to take all actions necessary to realise those assets, including initiating legal proceedings, has the authority to file an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, in respect of the assigned debt. Where debt and default are proved in a Section 7 application, the initiation of that application is not vitiated by any defect in the applicant's authority or jurisdiction to file it, provided the applicant holds the debt by valid assignment. A corporate debtor's pending or proposed settlement with the financial creditor does not bar the Adjudicating Authority from admitting or continuing a Section 7 application; the remedy is for the corporate debtor to file an application under Section 12A, which the Adjudicating Authority is to decide in accordance with law.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No.402 of 2023 IN THE MATTER OF: Damji Ramji Shah ...Appellant Versus Edelweiss Asset Reconstruction Company Ltd. & Anr. ...Respondents Present: For Appellant: Mr. Pradeep Rai, Sr. Advocate, Mr. Krishnendu Datta, Sr. Advocate, Mr. Kumar Anurag Singh, Mr. Shwetank Singh, Mr. amarendra Kumar and Mr. Zain A. Khan, Advocates. For Respondents: Mr. Kartik Nagarkatti, Advocate for R-1.

ORDER

10.04.2023: Heard Learned Counsel for the Appellant.

This appeal has been filed against the order dated 17.03.2023 by which

order Adjudicating Authority has admitted Section 7 application filed by the

Respondent No. 1 'Edelweiss Asset Reconstruction Company Ltd'.

3. Learned Counsel for the Appellant submits that the Applicant who has

initiated Section 7 application has no authority or jurisdiction to initiate Section

7 application.

4. The Adjudicating Authority by the impugned order has considered all the

submissions raised and had found that 'debt and default' proved.

5. Learned Counsel for the Respondent has referred to the Trust Deed dated

25.03.2019 wherein Clause (l), the following was clearly stated: -

Company Appeal (AT) (Insolvency) No.402 of 2023 1 "(l) to take all actions that may be

necessary to realise the Financial Assets that

form part of the Trust Fund, including

initiating legal proceedings, enforcing any

Security Interest, changing the management

of any Borrower and exercising any other

rights that it may be entitled to whether under

law, contract or otherwise."

6. Debt and default having been proved in Section 7 application, we don't

find any error in the initiation of Section 7 application. The Applicant being

an assignee had every right to initiate the Section 7 application.

7. Learned Counsel for the Appellant lastly submits that steps are being

taken for settlement with the Financial Creditor. In the event, if the settlement

is arrived at, it is always open for the Appellant to file Section 12A application

which may be decided by the Adjudicating Authority in accordance with law.

With these observations, we dismiss the appeal.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical)

ss/nn

Company Appeal (AT) (Insolvency) No.402 of 2023 2

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