2023 (3) TMI 646 - AT - Insolvency & Bankruptcy

Mainability of applicable u/s 65 while the application for initiation of CIRP is pending before NCLT - Fraudulent or malicious initiation of proceedings - Application filed under Section 65 of the Insolvency & Bankruptcy Code, 2016, has been dismissed on the ground that such an application would be maintainable only after the main petition is admitted and CIRP is initiated - whether an application filed under Section 65 of the Code is maintainable after the filing of the application under Section 7, 9 or 10 of the Code or could be maintainable only after the admission of such an application?

HELD THAT:- The application under Section 65 has been filed at the stage of initiation of the proceedings for the purpose of CIRP and is not maintainable after the admission of the application as has been held by the Learned Tribunal.

The question posed herein before, is answered in favour of the Appellant and against the Respondents. It is hereby held that in case where application is filed under Section 65 of the Code, it would be maintainable after the application is filed either under Section 7, 9 or 10 of the Code.

The view taken by the Learned Tribunal that the said application would be maintainable only after admission and initiation of the CIRP proceedings is totally fallacious and is hereby overruled.

The present appeal is hereby allowed - the impugned order is hereby set aside and the matter is remanded back to the Learned Tribunal to proceed further after taking into consideration the fact that the application of the Appellant is maintainable .