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T.R. Jawahar & Anr vs Edelweiss Asset & Anr

National Company Law Appellate Tribunal20 November 2017

Ratio decidendi

The rule this decision rests on

A party that is a trustee of a trust but is itself a company registered under the Companies Act, 1956 may file an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 in its own capacity as a "financial creditor", where it satisfies the definition of that term in sub-sections (7) and (8) of Section 5 of the Code; the fact that it acts as trustee does not prevent it from so qualifying. Where an application under Section 7 is filed by a financial creditor in that capacity and is complete, an appeal that merely contends the applicant filed in a representative capacity as trustee, without showing any defect in the application as filed, discloses no ground for interference with the Adjudicating Authority's order admitting the application.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 274 of 2017IN THE MATTER OF:

T.R. Jawahar & anr. ...Appellants

Versus

Edelweiss Asset & anr. ...Respondents

Present:

For Appellants: Shri Vivek Sibal, Ms. Pooja M. Saigal and Ms. Khyati, Advocates

For Respondents : Shri Sajeev Puri, Shri Dheeraj Nair and Shri Kunal Mimani, Advocates

ORDER

20.11.2017 This appeal has been preferred by T.R. Jawahar,

Shareholder/ Director of Frontline Printers Private Limited (Corporate Debtor)

and another against order dated 2nd November, 2017 passed by the Adjudicating

Authority (National Company Law Tribunal), Chennai in CP/606/(IB)/CB/2017

whereby and whereunder the application preferred by the respondent (Financial

Creditor)under Section 7 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as the 'I&B Code') read with Rule 4 of Insolvency and

Bankruptcy (Application to Adjudicating authority) Rules, 2016 has been

admitted, order of moratorium has been passed and the Interim Resolution

Professional (IRP) has been appointed with certain directions.

The only plea taken by the learned counsel for the appellants is that the

respondent(s) has filed the application under Section 7 of the I & B Code in the

Company Appeal (AT) (Insolvency) No. 274 of 2017 1 capacity of 'Trustee' and not as a 'Financial Creditor'. Reliance has been placed

on part-I of Form I wherein it mentioned that it is 'Acting in its capacity as

Trustee for EARC Trust SC-Trust-SC 19 (Series IV)'. However, on perusal of the

record, we find that in Part-I of Form I, it has been mentioned that the

respondent is a 'Financial Creditor'. Its date of incorporation as financial creditor

has been shown as 5th October, 2007 with the identification number as financial

creditor.

It is true that the respondent is a 'trustee' but we find that the respondent

is also a company registered under the Companies Act, 1956 and come within

the definition of 'Financial Creditor' as defined under sub-section (7) read with

sub-section (8) of Section 5 of the I & B Code.

In view of the fact that the respondent has filed the application in the

capacity of the 'Financial Creditor' and the application is complete, we find no

ground to interfere with the impugned order. In absence of any merit, the appeal

is dismissed. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] [ Justice A.I.S. Cheema ] Member(Judicial) Member (Judicial)

/ns/uk

Company Appeal (AT) (Insolvency) No. 274 of 2017 2

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