TaxTMI 
TaxTMI 
2018 (6) TMI 537
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....cates And Mr. Amitesh Gaurav and Mr. Bhavesh Verma, Advocates JUDGEMENT SUDHANSU JYOTI MUKHOPADHAYA, J. Srei Infrastructure (P) Limited ('Financial Creditor') filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") for initiation of 'Corporate Insolvency Resolution Process' against Assam Company India Limited ('Corporate Debtor'). By impugned order dated 26th October, 2017, the Adjudicating Authority (National Company Law Tribunal), Guwahati Bench, Guwahati, admitted the application, passed order of 'Moratorium' and appointed 'Resolution Professional' with certain directions. In Company Appeal (AT) (Insolvency) Nos. 292 & 293 of 2017 2. The Appellant- Mr. Aditya Kumar ....
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....ct, 2002 or suit under Section 19 of the DRT Act, 1993 pending before Debt Recovery Tribunal or appeal pending before Debt Recovery Appellate Tribunal cannot proceed in view of the order of moratorium as may be passed. 27. It is also desirable to refer to Section 238 of the I & B Code, as quoted below : "238. Provisions of this Code to override other laws - The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law." In view of the aforesaid provision also, I & B Code shall have the effect notwithstanding anything inconsistent therewith contained in any other law for the time bei....
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....cation to Adjudicating Authority) Rules, 2016 which mandates that an application shall "dispatch forthwith", a copy of the application "filed with the Adjudicating Authority". Thereby meaning a post-filing notice and not 'before filing", the obvious purpose for the same being to put the corporate debtor to adequate and informed notice. The 'adjudicating authority' ought to have realised these deviations from the prescribed procedure and either rejected the application or directed the Respondent to follow the provisions of sub-Rule (3) of Rule 4 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 and Rule 21 of the National Company Law Tribunal Rules. 20.4 Lastly, the 'adjudicating authority'....
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....nt dated 24th May, 2017 in "M/S. Starlog Enterprises Limited (Supra)" set aside the order on different grounds as mentioned in Paragraph No. 23, which reads as follows: "23. Admittedly the impugned order is ex-facie illegal and ought to be set aside by the Appellate Tribunal. For the reasons aforesaid, we set aside the ex-parte impugned order dated 17th February 2017 passed by 'adjudicating authority', Mumbai Bench in C.P. No. 12/1&BP/NCLT/MAH/2017 and allow the appeal." 8. It is not the case of the Appellant- Mr. Aditya Kumar Jajodia that the 'Financial Creditor' mislead the Adjudicating Authority and impugned order was passed ex parte in view of such misleading statement. 9. In "Innoventive Industries Ltd. v. ICICI Bank─....
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....n operational debt under Section 5(21) means a claim in respect of provision of goods or services. 28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor- it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub-section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is ....
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.... the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be." 10. It is not the case of the Appellant- Mr. Aditya Kumar Jajodia that they do not owe any debt to the 'Financial Creditor' or there is no default. The Adjudicating Authority being satisfied that a default has occurred admitted the application which was complete. 11. Another ground taken by the Appellant is that the Form 7 was not signed by the authorised person. However, we are not inclined to set aside the impugned order on such ground as the application under Section 7 (in Form-1) was filed by the authorised employees of the 'Financial Creditor'. In Company Appeal (AT) (Insolvency) No. 324 of 2017 12. The A....