TaxTMI 
TaxTMI 
2018 (2) TMI 1355
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....olvency & 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), Mumbai Bench, Mumbai vide impugned order dated 20th June, 2017 in CP No.1104/I&BP/NCLT/MAH/2017 rejected the application on the grounds mentioned therein. 2. The corporate applicant has challenged the impugned order mainly on the ground that the Adjudicating Authority has relied on facts which are not relevant for adjudication of an application under Section 10 of the I&B Code. 3. On plain reading of the impugned order dated 20th June, 2017 it is clear that the application was preferred by the corporate applicant in the requisite form giving....
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....owever, in spite of the same the Adjudicating Authority has rejected the claim on the grounds as mentioned at para 8 of the impugned order and quoted below: "8. Given the aforesaid facts, it appears that the Corporate Debtor is eager to sound its own death knell, presumably to scuttle the proceedings before SARFAESI as the consequential moratorium imposed u/s. 14 of the Code on admission of this Petition would automatically stay/stall the proceedings vide which the personal properties offered as securities are not enforced or taken possession of. The admission of the Petition shall have a serious impact on the Financial Creditors who have already set the wheel in motion to secure their debts. The apprehension, or rather certainty, of taki....
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....deration before this Appellant Tribunal in "M/s Unigreen Global Pvt Ltd Vs PNB & Others, Company Appeal (AT) (Insolvency) No.81/2017" wherein this Appellate Tribunal vide its judgment dated 01.12.2017 held as follows: "21. In an application under Section 10, the 'financial creditor' or 'operational creditor', may dispute that there is no default or that debt is not due and is not payable in law or in fact. They may also oppose admission on the ground that the Corporate Applicant is not eligible to make application in view of ineligibility under Section 11 of the I & B Code. The Adjudicating Authority on hearing the parties and on perusal of record, if satisfied that there is a debt and default has occurred and the Corporate Applicant is n....
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.... twelve months preceding the date of making of the application; or that the corporate debtor has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under the said Chapter; or that the corporate debtor is one in respect of whom a liquidation order has already been made can be a ground to reject the application under Section 10 on the ground of suppression of fact/not come with clean hand. xxxx 25. Similarly, if any action has been taken by a 'Financial Creditor' under Section 13(4) of the SARFAESI Act, 2002 against the Corporate Debtor or a suit is pending against Corporate Debtor under Section 19 of DRT Act, 1993 before a Debt Recovery Tribunal or appeal pending befo....
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....For the purposes of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor." xxxx 32. In view of the provisions aforesaid, we hold that, if any winding up proceeding has been initiated against the Corporate Debtor by the Hon'ble High Court or Tribunal or liquidation order has been passed, in such case the application under Section 10 is not maintainable. However, mere pendency of a petition for winding up, where no order of winding up or order of liquidation has been passed, cannot be ground to reject the application under Section 10.' 9. In the present case we find that the Adjudicating Authority has noticed extraneous factors unrelated to Corporate Insolvency Resolution Process which are n....