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2018 (4) TMI 687

are not inclined to interfere with the impugned order dated 26th July, 2017 passed by the Adjudicating Authority, Principal Bench, New Delhi. However, the order passed by the Adjudicating Authority will not come in the way of Appellant to issue notice under sub-section (1) of Section 8 of the ‘I&B Code’ to the ‘Corporate Debtor’, and to file an application under Section 9 of the ‘I&B Code’, if there is a debt and default by the ‘Corporate Debtor’. In such case, the Adjudicating Authority may decide the application uninfluenced by the impugned Order dated 26th July, 2017 and the judgment passed by this Appellate Tribunal. The appeal is dismissed with aforesaid observation. However, in the facts and circumstances of the case, there shall be n .....

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1) and (2) of Section 434 of the Companies Act, 2013 read with sub-section (1) of Section 239 of the 'I&B Code'. 4. The aforesaid Rule 5 was amended on 29th June, 2017 by Companies (Transfer of Pending proceedings) second Amendment Rules, 2017 , which reads as follows: 5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 4 .....

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5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. But no notice under sub-section (1) of Section 8 of the I&B Code was issued by the Appellant, nor necessary information were furnished as per Rule 5. In this background, the Adjudicating Authority dismissed the application. 6. Similar issue fell for consideration before this Appellate Tribunal in M/s. Sabari Inn Pvt. Ltd. Vs. M/s. Rameesh Associates Pvt. Ltd.─ Company Appeal (AT) (Insolvency) No. 117 of 2017 , wherein this Appellate Tribunal by its judgment dated 17th November, 2017 held as follows:- 11. From the aforesaid Rule 5, it is clear after transfer of the case the Applicant (Respondent herein) was required to submit all information, ot .....

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equest you to unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate insolvency resolution process in respect of [name of corporate debtor]. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing 16. Form-5 is the format for filing application under section 9, as per which the following details are to be provided: - Part I- particulars of applicant Part II- particulars of corporate debtor Part III- particulars of the proposed interim resolution professional (if proposed) Part IV- particulars of .....

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ode in terms of Rule 5 of Transfer Rules, 2016. In such circumstances, in view of proviso to Rule 5 of the Transfer Rules, the application under Sections 433 and 434 of the Companies Act, 1956 stands abated. 7. Learned counsel appearing on behalf of the Appellant placed reliance on Hon ble Supreme Court decision in L. Chandra Kumar Etc. Etc. Vs. The Union of India and Ors. Etc. Etc. (1997) 2 S.C.R 1186 and submitted that the Hon ble High Court has given certain findings which is binding on the Tribunal. In the present case, we do not feel necessity to deal with such arguments based on judgment in L. Chandra Kumar Etc. Etc. (Supra) as the application being incomplete in more than one aspect and the Appellant having not completed the same wit .....

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