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2017 (6) TMI 880 - AT - Insolvency and BankruptcyInsolvency & Bankruptcy Code - whether filing of “a copy of certificate from the “Financial Institution” maintaining accounts of the Operational Creditor confirming that there is no payment of unpaid operational debt by the 'Corporate Debtor' as prescribed under clause (c) of sub-section 3 of Section 9 of the 'I & B Code' is mandatory or directory? Held that:- The word 'shall' used in sub-section (3) of section 9 of 1 & B Code' is mandatory, including clause 3 therein. The appellant has enclosed a Final Award given by Sole-Arbitrator, Hong Kong Special Administrative Region, People's republic of China dated 18th August 2014 to suggest that the respondent Corporate Debtor is liable to pay the amount determined by arbitrator but defaulted to pay the amount. Even if such submission is accepted, the Adjudicating Authority cannot assume that the amount has not been paid pursuant to the award till on the basis of evidence on record i.e. copy of certificate from the “Financial Institution” maintaining accounts of the appellant confirming that there is no payment of an unpaid operational debt by the Corporate Debtor”. From the record we find that the appellant was given opportunity to complete the record by enclosing the certificate of “Financial Institution” and thereby to remove the defects within 7 days but failed to do so. In J.K. Jute Mills Co. Ltd. v. Surendra Trading Co. [2017 (6) TMI 254 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, ALLAHABAD], the Appellate Tribunal was considering whether the time limit prescribed in 'I & B Code' 2016 for admitting or rejecting the petition or initiation of Insolvency Resolution Process is mandatory? The Appellate Tribunal, by Judgment dated 1st May 2017 held that proviso to sub-section (5) of section 7 and proviso to sub-section (5) of section 9 granting “Financial Creditor/Operational Creditor” to complete the documents, if incomplete is mandatory. This Appellate Tribunal in “J.K. Jute Mills Company Limited, the appellant having failed to complete the documents within 7 days, the Tribunal was right in dismissing the application preferred by the Appellant. The argument that the foreign companies having no office in India or no account in India with any “Financial Institution” will suffer in recovering the debt from Corporate Debtor cannot be accepted as apart from the 'I & B Code', there are other provisions of recovery like suit which can be preferred by any person. Appeal dismissed.
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