Financial Creditor is required in the first place to establish himself as a Financial Creditor before being allowed to take advantage of the explanation to Section 7 to establish default owed not only to himself as a Financial Creditor but to any other Financial Creditor on the basis of NeSL data – GP. Capt Atul Jain (Retd.) Vs. Tripathi Hospital Pvt. Ltd. – NCLAT New Delhi
NCLAT held that:
(i) The basic requirement of existence of financial debt being owed by the Corporate Debtor to the Financial Creditor has to be first satisfied and cannot be overlooked.
(ii) under the statutory scheme of IBC, record of information utility which falls in the category of “deemed to be authenticated” even if not sacrosanct but still is relevant to establish default in terms of Section 3(12) of the IBC. Be that as it may, the Appellant is however required, in the first place, to establish himself as a Financial Creditor of the Corporate Debtor in terms of Section 5(7) of IBC before being allowed to take advantage of the explanation clause to Section 7 to establish default owed not only to himself as a financial creditor but to any other financial creditor of the corporate debtor on the basis of NeSL data for initiation of CIRP against the Corporate Debtor.
(iii) Given the fact that the Appellant has failed to establish that he had given any loan to the Corporate Debtor directly, it does not stand to reason for him to press for piercing the corporate veil to alleviate the burdens of his financial misadventure. We do not countenance the urge expressed by the Appellant to pierce the corporate veil.
