2018 (2) TMI 1221

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..... The Adjudicating Authority (National Company Law Tribunal), New Delhi rejected the application with the following observations : "8. The Petitioner has failed to produce any evidence to show that a claim has been lodged with the Petitioner Corporate Debtor and is lying unpaid. However, Ld. Counsel for the petitioner presses his argument that on the petitioner's showing that if a liability exists as per balance sheet of the Petitioner and the Corporate Debtor is unable to liquidate its liability, the code provides for the insolvency resolution to be set in motion. 9. We are unable to agree with the ld. Counsel for the applicant. It could never have been the intention of the legislature to consider a matter as serious as p....

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....f Corporate Insolvency Resolution Process against the 'Corporate Applicant. 4. Similar issue came for consideration before this Appellate Tribunal in "M/s. Unigreen Global Private Limited vs. Punjab National Bank and others" - Company Appeal (AT) (Insolvency) 81/2017. In the said case, this Appellate Tribunal by its judgement dated 1st December, 2017 held as follows : "20. Under both Section 7 and Section 10, the two factors are common i.e. the debt is due and there is a default. Sub-section (4) of Section 7 is similar to that of sub-section (4) of Section 10. Therefore we, hold that the law laid down by the Hon'ble Supreme Court in "Innoventive Industries Ltd. (Supra) is applicable for Section 10 also, wherein the Hon'ble Supre....

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....is otherwise 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. Nondisclosure of facts, such as that the 'Corporate Debtor' is undergoing a corporate insolven....

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....;                         xxx 28. In a case where a winding up proceedings has already been initiated against a Corporate Debtor by the Hon'ble High Court or Tribunal or liquidation order has been passed in respect of Corporate Debtor, no application under Section 10 can 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....