TaxTMI 
TaxTMI 
2018 (1) TMI 951
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....older and the promoter of 2nd Respondent ('Corporate Debtor') has challenged the order dated 12th October, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Chennai, whereby and whereunder the application preferred by the 1st Respondent- M/s. CMI India Pvt. Ltd. ('Operational Creditor') under Sections 433 and 434 of the Companies Act, 1956 has been treated to be an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as "Adjudicating Authority Rules, 2016"), the application has been admitted, order of Moratorium has been passed and n....
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....ational Creditor' issued a legal notice on 15th September, 2016 through a lawyer calling upon the 'Corporate Debtor' to pay the outstanding sum of Rs. 7,88,54,073/-, to which the 'Corporate Debtor' replied by letter dated 17th October, 2016 denying any liability. Thereafter, the 1st Respondent 'Operational Creditor' filed a Company Petition under Sections 433 & 434 of the Companies Act, 1956 before the Hon'ble High Court of Madras bearing S.R No. 46897 of 2016 claiming a sum of Rs. 7,88,54,073/- (plus interest) from the 'Corporate Debtor'. 4. After constitution of the Tribunal, pursuant to the Notification No. G.S.R. 1119(E) dated 7th December, 2016, issued by Central Government under sub-section (1) and (2) of Section 434 of the Compani....
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....ion (1) of Section 239 of the 'I&B Code', the Central Government framed "The Companies (Transfer of Pending Proceedings) Rules, 2016". 9. Rule 5 relates to transfer of pending proceedings of winding up on the ground of inability to pay debts which are to be transferred from the Hon'ble High Court's to the respective Tribunal and reads as follows: - "5. Transfer of pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be trans....
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....ssional' within sixty days, failing which, the petition shall stand abated. 11. As per Section 9 of the 'I&B Code', before admission of application and its filing, a demand notice under sub-section (1) of Section 8 is required to be issued on the 'Corporate Debtor', as quoted below:- "8. Insolvency resolution by operational creditor. - (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed." 12. It is only on receipt of such notice under sub-section (1) of Section 8 of the 'I& B Code', the 'Corporate Debtor' may either pay....
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....uctions, the following documents are required to be attached: "Annex I Copy of the invoice/demand notice as in Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 served on the Corporate debtor. Annex II Copies of all documents referred to in this application. Annex III Copy of the relevant accounts from the banks/financial institutions maintaining accounts of the operational creditor confirming that there is no payment of the relevant unpaid operational debt by the operational debtor, if available. Annex IV Affidavit in support of the application in accordance with the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Annex VI ....
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.... be open to the 1st Respondent to file fresh application under Section 9 of the 'I&B Code' after ten days of service of such notice. In such case, the Adjudicating Authority may decide the application uninfluenced by the impugned Order dated 12th October, 2017 and the judgment passed by this Appellate Tribunal. 20. In effect, order (s) passed by the Adjudicating Authority appointing 'Resolution Professional', declaring moratorium, freezing of account and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action, if any, taken by the 'Resolution Professional', including the advertisement, if any, published in the newspaper calling for applications and all such orders and actions are declared illegal an....