9911796707
TMI Blog2021 (2) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... it was noticed in order dated 3rd February, 2021 that the Track Consignment Report confirmed delivery of notice upon Respondent and appearance of Respondent was awaited. Since, Respondent has not joined the proceedings even today, we proceed to hear the Appeal in ex-parte. 2. After hearing Mr. Gaurav Mitra, Advocate representing the Appellant and having waded through the impugned order, we notice that the Application of Appellant - Operational Creditor filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short the 'I&B Code') has not been admitted or rejected by the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench), in terms of order dated 8th June, 2020 impugned in this Appeal. The Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority." 3. On a plain reading of this provision, it emerges that the Adjudicating Authority is required either to admit the Application, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitle the Appellant to invoke the provisions of the Code, unless the debt and default is undisputed and proved to the satisfaction of the Adjudicating Authority. In view of this factual position, as noticed in the impugned order, the Adjudicating Authority should have, in absence of any dispute contemplated under Section 8(2) having been raised by the Respondent - Corporate Debtor as a pre-existing dispute or that the claim of Appellant - Operational Creditor had been satisfied, proceeded to admit the Application, as no dispute had been raised before it, justifying its disinclination to admit the Application. Instead, the Adjudicating Authority proceeded to make out a case for the Respondent-Corporate Debtor on the premise that the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is conferred power, even to refer the matter pending before it, to Mediation and Conciliation, U/s 442 of the Companies Act, 2013. The Adjudicating Authority being NCLT, U/s 60(1) of the Code, can suo motto refer the matter to either Mediation and Conciliation or to Arbitration to settle the dispute. Since, this already Arbitration clause is available in the Agreement in question, the Petitioner can be permitted to invoke Arbitration clause in respect of the issue in question." 6. The Adjudicating Authority appears to have made observation in regard to the Corporate Debtor being a solvent company, ignoring the fact that it was alleged to have committed default in respect of operational debt that it owed to the Appellant-Operational Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X
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