2017 (9) TMI 854

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....433(e) of the Companies Act, 1956 with a prayer for winding up the respondent company before the Hon'ble Delhi High Court and then filed an affidavit of compliance dated 5.6.2017 before this Tribunal showing that a demand notice dated 23.05.2017 under the provisions of Section 8 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') has been sent by speed post which was delivered to the respondent on 26.5.2017. A perusal of the demand notice shows that the petitioner claims himself to be an 'Operational Creditor' because the demand notice is issued under Section 8 of the Code. However, in the affidavit dated 5.5.2017 the petitioner claims that it was filing an application under Sub-Rule (1) of Rule 7 of the....

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....e Tribunal vide order dated 20.03.2017. 4. I say and submit that the said petition under the Companies Act, 1956 may be treated and considered under new Act in accordance with the law. 5. I say and submit that the petitioner is filing an application under sub-rule (1) of rule 7 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against the respondent company. Copy of the said application is annexed herewith as Annexure A- 1. 6. I say and submit that the petitioner propose to appoint Mr. Mukesh Kumar Grover as an insolvency professional registered with The Indian Institute of Insolvency Professionals of ICAI having registration Number IBBI/IIPA-001/IP-00393/2016-17/1410. The written communication by the In....

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.... concealed thereby.' Para 5 of the affidavit categorically states that the petitioner was filing an application under sub-rule (1) of rule 7 of insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 whereas in the notice of demand dated 23.5.2017 it is projected that the notice was issued under Section 8 of the Code. The affidavit dated 5.6.2017 reads as under:- "1. That I am the authorized representative of the petitioner company in the above noted case and am well conversant with the facts of the case. I am thus competent to swear the present affidavit. 2. I say and submit that I have served demand notice dated 23.05.2017 under the provisions of Section 8 of Insolvency and Bankruptcy Code, 2016 vide speed ....