2017 (9) TMI 128

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....arh in CP(IB) No. 21/Chd/Hry/2017. 2. Appellant - Achenbach Buschhutten GmbH & Co., is a company incorporated under the laws of Germany having its office at 'Siegener StraBe, 152, 57223, Kreuztal, Germany', claimed to be 'Operational Creditor' and filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') to initiate Corporate Insolvency Resolution Process in respect of respondent-Arcotech Limited/'Corporate Debtor'. The said order is under challenge in the present appeal. 3. One of the plea taken by the learned counsel for the appellant is that the Learned Adjudicating Authority, referring to clause of arbitration, has not entertained the ap....

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....bt by the 'Corporate Debtor', as prescribed under clause (c) of sub-section (3) of Section 9 of the 'I & B Code' mandatory, observed and held as follows:- "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 required to be mandatorily followed and it is not empty statutory formality. 12. Sub-section (2) stipulates filing of an application under Section (1) only in the form and manner and accompanied with such fees as may be prescribed. The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as 'Adjudicating Authority Rules, 201....

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....ut is directory. 14. The provision being "directory" or "mandatory" has fallen for consideration before Hon'ble Supreme Court on numerous occasions. In Manilal Shah v. Sardar Sayed Ahmed (1955) 1 SCR 108, the Hon'ble Apex Court held that where statute itself provide consequences of breach or non-compliance, normally the provision has to be regarded as having mandatory in nature. 15. One of the cardinal principles of interpretation of statute is that, the words of statute must prima facie be given their ordinary meaning, 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 una....

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.... of the law-maker. And that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other." 16. Therefore, it is clear that the word 'shall' used in sub-section (3) of section 9 of 'I & B Code' is mandatory, including clause 3 therein." 6. In Macquarie Bank Ltd. v. Uttam Galva Metallics Ltd. [Company Appeal (AT) (Insol.) No. 96 of 2017, dated 17-7-2017], this Appellate Tribunal, after taking into consideration that the foreign bank was not incorporated under the Companies Act, 1956 or Companies Act, 2013 and the bank has no office in India nor any account with any of the bank or &#....