2022 (11) TMI 347 - AT - Insolvency & Bankruptcy
Maintainability of petition - proforma to file application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - Cheque issued by the Respondent was dishonoured - existence of debt and dispute or not - HELD THAT:- The Appellant has filed the application under Section 7 of the Code to initiate the CIRP against the Respondent by admission of the application. However, Section 7(1) provides that the application under Section 7 can be filed before the Adjudicating Authority to initiate the Corporate Insolvency Resolution Process (CIRP) against the Corporate Debtor when a default has occurred. Similarly, Section 7(2) provides that the application provide under Section 7(1) has to be filed in the form and manner as prescribed. Thus, in order to initiate the proceedings under section 7 of the Code the date when the default has occurred is essential. The application is provided to be filed on a printed performa which is provided in Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.
If the application under Section 7 of the Code could be filed only when the default occurs and the date of default is conspicuous by its absence in the pleadings of the Appellant, dishonour of the cheque, as alleged by the Appellant, could not be taken as the date of default. There was no effort on the part of the Appellant to get the pleadings amended before the Adjudicating Authority. Therefore, in the absence of necessary ingredients, pleaded in the application filed under Section 7 of the Code, on the basis of which the application could have been maintained, there are no reason to interfere in the impugned order.