TaxTMI 
TaxTMI 
2017 (12) TMI 1544
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.... Bank and Standard Chartered Bank (Financial Creditors) appeared and opposed the appeal. The Adjudicating Authority while noticed that the petition has been filed in the required format providing requisite details of its corporate debtor and its creditors and details of debts and default but dismissed the application under Section 10 on the ground that the petition would have serious impact on the financial creditor who have already set the wheel in motion to Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the 'SARFAESI Act'). 2. For deciding this case, it is desirable to notice the ground shown by the Adjudicating Authority (National Company Law Tribu....
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....ss. To stay the repossession of immovable properties by Banks by resorting to the provision of Sec. 10 of the Code, and the consequential effect of the moratorium which has to follow, would clearly be an abuse of the process of law to which this Bench certainly cannot be a party to. It is not sufficient just to meet the requirements under sec. 10 of the Code which would automatically entitle the Corporate Debtor to initiate such proceedings. Surely it could never have been the intention of the legislature to provide relief to defaulters of the Banks by taking refuge under this Code. The Adjudicating Authority has to consider the merits of each case and see beyond what meets the eye, and only after due application of mind, consider the case ....
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....ble Supreme Court observed as "The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority". 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 pe....
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....rporate insolvency resolution process; or that the 'Corporate Debtor' has completed corporate insolvency resolution process 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. xxx xxx xxx 25. Similarly, if any action has been taken by a 'Financial Creditor' under Section 13(4) of the SARFAESI Act, 2002 against the Corpora....
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....e months before the date of making of an application under this Chapter; or (d) a corporate debtor in respect of whom a liquidation order has been made. Explanation.-- For the purposes of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor." 29. In view of the aforesaid provision where a winding up proceeding has already been initiated under the Companies Act, 1956/2013 by the Hon'ble High Court such cases have not been transferred to National Company Law Tribunal, pursuant to "Companies (Transfer of Pending Proceedings) Rules, 2016", framed by the Central Government." 5. In the present case, it has not been pleaded that the appellant-Corporate Debtor is ineligible in terms of ....