TaxTMI 
TaxTMI 
TaxTMI 
2018 (2) TMI 444
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.... preferred an application under Section 10 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code') for initiation of corporate insolvency process in respect of it. The Adjudicating Authority (National Company Law Tribunal) Hyderabad Bench, Hyderabad vide impugned order dated 21st August, 2017 passed in CP (IB)No. 50/10/HDB/2017 rejected the application under Section 10 of the I&B Code on different grounds including pendency of a winding up proceedings. 2. Learned counsel appearing on behalf of the corporate applicant submitted that there is no possibility of the revival of the appellant company. He further submits that the application under Section 10 of I&B Code was complete having fulfilled all the statutory....
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....appellant submitted that against the order of winding up the appellant has preferred an appeal before the Division Bench of the Hon'ble Andhra Pradesh High Court wherein the Hon'ble High Court vide order dated 19th August, 2015 passed interim order of stay. The operative portion of the stay order is reproduced below: "In view of the law laid down by the Supreme Court in RISHSABH AGRO INDUSTRIES LTD. all proceedings on or after 02.07.2015 shall, in view of Section 22 of the Act, be stayed. It is made clear that the stay would operate only from 02.07.2015 onwards and the proceeding prior thereof shall remain in force. Needless to say that this order shall not precludes the respondent creditor from invoking the jurisdiction of the BIFR under....
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....late Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending." 7. It was further contended that Section 11(d) of I&B Code bars the corporate applicant, in respect of whom order of liquidation has already been made, from making any petition under Section 10 of I&B Code. 8. From the facts pleaded by the parties we find that the winding up proceeding has already been initiated against the appellant though an interim order has been passed by the Division Bench of Hon'ble High Court of Andhra Pradesh. However, the fact remains that the winding....
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....se not ineligible under Section 11, the Adjudicating Authority is bound to admit the application and cannot reject the application on any other ground. 23. Any fact unrelated or beyond the requirement under I & B Code or Forms prescribed under Adjudicating Authority Rules (Form 6 in the present case) are not required to be stated or pleaded. Non-disclosure of any fact, unrelated to Section 10 and Form 6 cannot be termed to be suppression of facts or to hold that the Corporate Applicant has not come with clean hand except the application where the 'Corporate Applicant' has not disclosed disqualification, if any, under Section 11. Non-disclosure of facts, such as that the 'Corporate Debtor' is undergoing a corporate insolvency resolution pr....
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.... be filed by the Corporate Applicant in view of ineligibility under Section 11(d) of I & B Code, as quoted below: "11. Persons not entitled to make application - The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:- (a) a corporate debtor undergoing a corporate insolvency resolution process; or (b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or (c) a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this Chapter; or (d) ....