TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 880
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....t in (c) of Sub-section (2) of Section (9) of this Code 2016. Looking at non-filing of the certificate that is required to be filed along with this petition, this Bench had already given time to furnish the said document, but the counsel failed to furnish the said certificate. When this Bench has put it to the petitioner counsel how this Bench could pass this order without furnishing the certificate mandatorily to be filed along with the petition, the counsel appearing on behalf of the Operational Creditor submits that it is impossible to file copy of such Certificate from the Financial Institution for the Bank of the operational creditor is situated outside India, therefore, the compliances with such requirements shall be exempted." On perusal of Section 9 of Insolvency and Bankruptcy Code, it is evident, that it is mandatory to file copy of the Certificate from the Financial Institutions reflecting non-payment of the operational debt impugned, for the Operation Creditor has failed to annex copy of the said Certificate as required u/s 9(3) (c) of the Code, this petition is liable to be rejected. Accordingly, the same is hereby rejected." 2. The question for determination in....
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....cating Authority' was required to interpret the provisions of 'I & B Code' in such a manner that Section 9 would have taken in its fold all the 'Operational Creditors' who are entitled to recover the debt defaulted by 'Corporate Creditors' of India. Learned counsel for the appellant further submitted that the word 'shall' used in sub-section (3) of Section 9 for furnishing documents etc. should be read as 'may', and hold that sub-section (3) of Section 9 is directory. Reliance was placed on Hon'ble Supreme Court decision in "Kailash v. Nanhku and Others" [2005] 4 SCC 480". 8. In the said case the Hon'ble Supreme Court while deciding the question whether time limit of 90 days as prescribed by the Proviso appended to Rule-1 of Order VIII of CPC is mandatory or directory in nature? The Hon'ble Supreme Court held that ordinarily the time prescribed by Order VIII, Rule I has to be honoured but it held that the provision being part of the procedural code is directory. 9. With due respect we are of the view that aforesaid decision of Hon'ble Supreme Court in 'Kailash (supra)' is not applicable in the present case, as cl....
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....roposed under sub-section (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid 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. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section". 11. On perusal of entire Section (3) along with sub-sections and clauses, inclusive of proviso, it would be crystal clear that, the entire provision of sub- clause (3) of Section 9 r....
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...., unless of course, such construction leads to absurdity or unless there is something in the context or in the object of the statute to the contrary. When the words of statute are clear, plain and unambiguous, then, the courts are bound to give effect to that meaning, irrespective of the consequences involved. Normally, the words used by the legislature themselves declare the legislative intent particularly where the words of the statute are clear, plain and unambiguous. In such case, effort must be to give a meaning to each and every word used by the legislature and it is not sound principle of construction to brush aside words in statute as being redundant or surplus, and particularly when such words can have proper application in circumstances conceivable within the contemplation of the statute. 16. For determination of the issue whether a provision is mandatory or not, it will be desirable to refer to decision of Hon'ble Supreme Court in State of State of Mysore v. V.K. Kangan [1976] 2 SCC 895. In the said case, the Hon'ble Supreme Court specifically held: "10. In determining the question whether a provision is mandatory or directory, one must look into the subject-m....