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2019 (3) TMI 1901 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - winding up petition against the corporate debtor, pending for disposal before High Court - consideration of application filed by SBI - State Bank of India did not disclose pendency of winding up petition against the corporate debtor - suppression of material fact and playing fraud on this authority or not. Whether in view of the fact that the Hon’ble High Court having admitting the winding up petition against the corporate debtor and it is pending for disposal, this authority can consider this application filed by State Bank of India under section 7 of IBC? - HELD THAT:- Though the winding up petition against the corporate debtor is admitted by the Hon’ble High Court, this authority can proceed with heaing of this application filed by State Bank of India (in short, SBI) against the corporate debtor under section 7 of 1&B Code. I also noted that SBI’s stand before the Hon’ble High Court against the corporate debtor and before this authority is not inconsistent at all. In the High Court, SBI opposed winding up proposal and here in this case, SBI requested this authority to have a resolution of insolvency of the corporate debtor as a first instance and if not the consequences of liquidation may follow - Hon’ble High Court admitted winding up petition against the corporate debtor, this authority can proceed with hearing of this application and admit the corporate debtor in CIRP. Whether this authority having held in daily proceeding order dated 02.08.2017 in CP No.95/KB/2017 that it is not proper on the part of this authority to pass any order against the corporate debtor in CIRP under IBC as it may amount to interference of jurisdiction of Hon’ble High Court. Whether this authority can still consider this application filed by SBI under section 7 of IBC? - HELD THAT:- It is to be made clear that the order dated 02.08.2017 was passed in daily proceeding under rule 92 of NCLT rules, 2016. By that order, this authority simply adjourned that matter to next date. It is not a final order passed in the proceeding. Moreover, that order was passed way back on 22.08.2017 when law relating to status of the proceeding under I&B Code vis-a-vis proceeding under winding up petition pending against same company was not clearly set out and explained - proceeding under |&B Code being distinct and independent proceeding than the proceeding of winding up company, this Adjudicating Authority can proceed with the hearing of the application under section 7, 9 or 10 of 1&B Code filed by the creditor or Corporate Person as the case may be. This authority has to take judicial notice of above judgment of the Hon’ble Apex Court as they are having binding precedent on this authority as per Article 141 of the Constitution of India. When this authority passed order dated 02.08.2017, this position of law was not clear. This authority can proceed with the hearing of this application. It cannot be said that this authority is sitting in appeal against its own order because order cited by the corporate debtor cannot be said to be final order passed by this authority. State Bank of India did not disclose pendency of winding up petition against the corporate debtor and the order of this authority dated 02.08.2017 in CP No.95/KB/2017. Whether it is amounting to suppression of material fact and playing fraud on this authority? - HELD THAT:- This authority did not pass any order in favour of the SBI. It is not a case wherein the SBI got some advantageous order being passed by this Adjudicating Authority because it did not disclose pendency of winding up petition against the corporate debtor. No doubt, SBI ought to have disclosed the same in all its fairness but only because SBI did not disclose those facts, is not enought to reject this application. SBI did not seek any order prejudicial to the interest of the corporate debtor. In fact, it is the say of SBI in this proceeding that as the corporate debtor is unable to pay huge debt, its insolvency resolution process may be started - non-disclosure of pendency of winding up petition against the corporate debtor is not a relevant and material fact to decide this application - answered in negative. Application admitted - moratorium declared.
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