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TMI Blog2017 (10) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... and section 434 of the Companies Act, 1956 for claiming an outstanding debt of Rs. 1,36,68,000. 2. Thereafter the said Petition was transferred to NCLT, Mumbai. Thereupon, complying the provisions of the I&B Code, the Petitioner has filed a fresh Application on requisite Form No. 5 before NCLT on 21-04-2017 and therein also the "Operational Debt" was stated to be Rs. 1,36,68,000. It is stated that the Petitioner as a Sole Proprietor of M/s. M. Tex-Chem has supplied chemicals, pigments, etc. to the Respondent Debtor M/s. Maharaja Dyeing Private Limited having its office in Dombivli (East), District Thane, Maharashtra, alleged to be an "Operational Debtor". 3. A preliminary legal question has been raised from the side of the Respondent Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that according to the Inward Register of the Respondent Company, the Petition was received on that date. So the argument is that since the Petition had already been served upon the Respondent Company before the transfer rules were notified which came into effect on 15-12- 2016 therefore the captioned Petition was wrongly transferred to NCLT. 3.2 The next argument is that the Petition under section 9 was defective because the requisite Form No. 5 was incomplete, devoid of the necessary details and particulars. One of the defect according to the Learned Counsel was that the Petitioner had not furnished the copy of the Invoices demanding the payment. It has also been pleaded that the Demand Notice as per Section 8 has not been issued. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2017. On 24-08-2017, the matter was partly heard on the question of "Maintainability" and adjourned to 04-09-2017, i.e. today. It is pleaded that sufficient opportunity was given to the Respondent but there was no evidence to support the impugned question of jurisdiction of NCLT. Finally, it has also been pleaded, by referring an Affidavit in reply of the Petitioner dated 01-09-2017, that the Respondent is relying upon a private document to demonstrate that the Petition was served upon him on 14-12-1016; however, it was a fabricated document. The NCLT cannot pass order to give instruction to send back the file to the Hon'ble High Court and such power is only with the Hon'ble High Court. If at all the jurisdiction is with the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court. The settled convention is that the subordinate Court/Tribunal has to follow and honour the judgment/direction of the superior Court. Universal fact is that the stream of water flows from higher level to lower level. Because of this reason, this Bench is of the opinion that once a Petition has been transferred from the High Court, then unless and until it is recalled by an order of the High Court, the Petition cannot be transmitted back to High Court. We, as a subordinate Court, cannot and must not revert back a Petition with an observation that the same to be decided by the Hon'ble High Court. 7. As far as the service of the original Petition on the Respondent is concerned, the date of service as alleged by the Debtor Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y supplying the goods. The books of Accounts are duly maintained and demonstrated that the receivable amount as on 12-05-2014 was Rs. 10,74,450, The Petitioner had sent the Ledger Account to the Debtor Company for verification which was marked as "tallied" by one of the Company's Officer, as also duly stamped. The Petitioner issued a legal notice; however, no payment was made. Having no option left, the Petitioner filed the Petition before the Hon'ble High Court under the old provisions of the Companies Act. As a result the "Debt" as also the "Default" has duly been established by the Petitioner. 10. Considering the totality of the facts and circumstances this Petition now under consideration deserves to be "Admitted". 10.1 The Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (IV) That the order of Moratorium shall have effect from the date of this order till completion of the corporate insolvency resolution process or until this Bench approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, as the case may be. (V) That the public announcement of the corporate insolvency resolution process shall be acted upon immediately as specified under section 13 of the Code. 10.3 That this Bench hereby appoints, Mr. Mr. Hemant Mehta, Registration No. IBBI/IPA-001/IP-P00027/2016-17/10060 as Interim Resolution Professi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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