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TMI Blog2018 (9) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... nication Limited (in short Respondent) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short IB Code 2016) r/w Rule 6 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, IB Rules 2016). 2. Before proceeding with this matter, it would be appropriate to make a note of background facts for the purpose of determination of this petition. 3. The petitioner/OC is a Limited Company incorporated under the Companies Act of Germany and it is situated at Postfach 126272795, Eningenu A and represented by a director of M/s. JDSU India Private Limited and the respondent is also a Public Company registered under the Companies Act, 1956 having its registered office at No. 1, Dr. Ranga Road, Alwarpet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before this Tribunal. The learned Counsel also submitted that the Respondent has never replied to the notice issued under section 434(1)(a) of the Companies Act, 1956 and also the demand notice dated 25.07.2017 issued under the I & B Code. 5. The learned Counsel for the petitioner has submitted that the Respondent has never disputed the due payable to the Applicant and when the Respondent is unable to pay its operational debt, then the Applicant, left with no other option except approaching this Adjudicating Authority in order to initiate the corporate insolvency process against the Respondent in relation to their claim of Rs. 1,58,77,120/- in the capacity of an Operational Creditor under the provisions of the IB Code, 2016 against the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he maintainability of the present petition which are not sustainable under law. The respondent has made allegations as to the responsibility of the operational creditor to make the BSNL to accept the shipment who are totally a third party to the operational creditor. There was no communication between the respondent and the BSNL and the email correspondence between the respondent and the operational creditor would prove the same. Since the respondent is the consignee, the Operational Creditor can make claim only against the respondent and if the Operational Creditor is asked to chase behind the BSNL who are totally a third party to the case, it would put great lose to the Operational Creditor. He has further submitted that the petition is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consent to the counter offer made by the respondent. In this case, neither the Petitioner nor the respondent has obtained the Product Acceptance of BSNL and hence has not fulfilled the condition required. Thus the petition filed by the Operational Creditor under section 9 Rule 6 of the IBC, 2016 at this point of time is premature and is liable to be dismissed. 11. The Tribunal further clarifies that the right of the operational creditor to approach this forum under Section 9 of IBC is unaffected if and when the respondent does not make any payment within a period of 90 days from the date of delivery of acceptance by BSNL. Therefore, the petition CP/726/ (IB)/2017 stands disposed of with the directions given above and there will be no ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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