2018 (4) TMI 936

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... under Sections 433 (e) & (f), 434 (i) (a) and 439 (i) (b) of the Companies Act, 1956, before the Hon'ble High Court of Madras against Nandha Energy Limited ('Corporate Debtor'). The said case was transferred before the Adjudicating Authority (National Company Law Tribunal), Chennai Bench, pursuant to Rule 5 of "the Companies (Transfer of Pending Proceedings) Rules, 2016". The Adjudicating Authority treated the petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') and by impugned order dated 29th August, 2017 admitted the appeal, passed order of 'Moratorium' and appointed 'Insolvency Resolution Professional' with certain observations and directions. 2. The Appellant Mr. M. Nandagopal, ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ich 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 transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Act, exercising territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 or 9 of the Code, as the case may be, and dealt ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....or', 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." 13. 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 the amount or may dispute the claim in terms of sub-section (2) of Section 8 of the 'I&B Code'. 14. Clause (a) and (b) of sub-rule (1) of Rule 5 of the 'Adjudicating Authority Rules' provides the format in which the demand notice/invoice demanding payment in res....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... 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 Written communication by the proposed interim resolution professional as set out in Form 2 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Annex VI Proof that the specified application fee has been paid." 17. Admittedly, no notice was issued under sub-section (1) of Section 8 of the 'I&B Code'. In te....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... that the application preferred by the 1st Respondent under Sections 433 and 434 of the Companies Act, 1956 stood abated. 8. However, liberty is given to the 1st Respondent to issue fresh notice under sub-section (1) of Section 8 of the 'I&B Code' and on service of such notice if there is a debt and default or no dispute is raised, it will 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 Orders and the judgment passed by this Appellate Tribunal. 9. In effect, order (s) passed by the Adjudicating Authority appointing 'Resolution Professional', declaring moratoriu....