AI Drafter 
TaxTMI 
TaxTMI 
2019 (10) TMI 55
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....hampur, Dhar, Madhya Pradesh 454 775 having identification No. U51109MP2004PTC016796. That, authorised share capital of the corporate debtor is Rs. 25,00,000/- and paid-up share capital is Rs. 25,00,000/-. 4. It is submitted by the applicant that he had filed application under Section 9 of the IB Code before this Adjudicating Authority, being , Being Company Petition No. CP (IB) No. 29 of 2017 which was admitted on 06.06.2017. which was admitted on 06.06.2017. That, being aggrieved by the said order, the respondent approached Hon'ble NCLAT by filing appeal, being No. Company Appeal (AT) (Insolvency) No. 113 of 2017 on the ground that notice issued under Section 8 was not issued by the operational creditor but through its advocate. Hon'ble NCLAT observed that notice of hearing was not properly issued and as such admission of CP (IB) No.29 of 2017 on 06.06.2017 is bad. That, the Hon'ble Appellate Tribunal relying on the decision of "Uttam Galve Steels Ltd. v. DF Deutsche Forfait AG & Anr. in Company Appeal (AT) (Insolvency) 39 of 2017 passed an order inter alia, observing that the case is covered by the decision of "Uttam Galva Steels Limited v. DF Deutsche Forfait AG and set asid....
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.... 11 Order dated 06.06.2017 passed in CP (IB) 29 of 2017 by this Bench 98-104 12 Order dated 16.10.2017 issued by Hon'ble NCLAT in CA (AT) (Insolvency) No. 113 of 2017 105-110 7. That, the corporate debtor appeared through engaged lawyer and filed affidavit in reply-cum-objections. The first and foremost issue raised by the respondent in the reply is that order dated 06.06.2017 passed by this bench in CP (IB) No. 29 of 2017 was challenged before the Hon'ble NCLAT, wherein, Hon'ble NCLAT dismissed the order of Ahmedabad Bench vide order dated 16.10.2017 and no SLP was preferred by the petitioner or it has not been challenged before any other competent forum. Furthermore, the order delivered by this court was rejected by the Appellate Tribunal on the same ground for the same cause of action. The instant application is not maintainable and principles of res judicata applies to the instant petition and hence it is required to be dismissed ab initio because the judgement delivered by the Appellate Court dated 16.10.2017 has become final and binding on the petitioner as well as this bench. 8. Heard the arguments of the learned counsels appearing for both the sides ....
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....ing any interim resolution professional or declaring moratorium, freezing of account, if any, and all other order(s) passed by Adjudicating Authority pursuant to impugned order and action taken by the Interim Resolution Professional, including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by the respondent under section 9 of the I & B Code, 2016 is dismissed. Learned Adjudicating Authority will now close the proceeding. The appellant company is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect." 10. Thus, on plain reading of the order it is found that the order passed by this Adjudicating Authority on 6th June, 2017 was not set aside/dismissed on merit but on the ground that the notice has not been issued through Registry informing the date of hearing as well as the demand notice was issued by the advocate. As regards the issuance of notice through Advocate, the issue has already been taken up and decided by Hon'ble Supreme Court that notice can be issued by advocate/lawyer also. 1....
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....onsidered Order XXIII Rule 3 of the amended code of Civil Procedure, which mandated the compromise deed be signed by the parties and held that the compromise deed signed by the counsel on behalf of the parties also is valid in law. The Supreme Court also held that Section 30 of the Advocates Act should be harmoniously read with the Code and held that the notice issued under Section 8 of the Insolvency and Bankruptcy Code by a lawyer on behalf of the client is valid in law and serve the purpose stated in the Code. 14. That apart, it is an admitted fact that the applicant had supplied goods worth Rs. 41,84,270.00 to the respondent during the period from 20.03.2014 to 19.05.2016. That, the said fact is not denied by the respondent also. That, one of the documents produced by the respondent alleging the quality of the goods supplied by the applicant during the period from 20.03.2014 to 19.05.2016 is "first part approval", purportedly called quality inspection report. That, all the reports are partially legible and bear different dates of the year 2016. Similarly, all the debit/credit notes raised on the applicant by the respondent are dated 20.04.2016 whereas the corresponding bills....
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....not yet been paid; and (iii) Whether there is existence of a dispute between the parties on the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute. 17. With regard to point No. (i), the corporate debtor himself admitted the amount of debt vide his letter 09.05.2017 vide Annexure R/4 at page No. 17. The only difference is that about the quantum of amount. As per the applicant the amount due is Rs. 41,84,270/- (Rupees forty-one lacs eighty-four thousand two hundred seventy only) and as per respondent Rs. 10,50,000/- (Rupees ten lacs fifty thousand only) is due. But all said and done, the fact is that there is a debt due to the applicant which is more than Rs. 1.00 lakh. 18. With regard to point No. (ii), the applicant has filed copy of invoices which the corporate debtor has admitted. Not only that as per corporate debtor the amount against two invoices are already paid. 19. With regard to point No. (iii), there is no dispute between the parties or there is/are any suit or arbitration pending. 20. On perusal of the material available on record it is....
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....IBBI/IPA-002/IP-N00049/2016- 17/10093 to act as interim resolution professional u/s 13 (l)(b) of the Code who has filed Form-2 and Certificate of Registration issued by the Insolvency and Bankruptcy Board of India. This Adjudicating Authority directs the Insolvency Resolution Professional to make public announcement of initiation of Corporate Insolvency Process and calls for submission of claims under Section 15 as required by Section 13(l)(b) of the Code. 26. From the above stated discussion and on the basis of material available on record it is a fit case to initiate Insolvency Resolution Process by admitting the Application under Section 9(5)(1) of the Code. 27. Section 13 of the Code enjoins upon the Adjudicating Authority to exercise its discretion to pass an order to declare a moratorium for the purposes referred to in Section 14, to cause a public announcement of the initiation of corporate insolvency resolution and call for submission of claims as provided under Section 15 of the Code. Sub-section (2) of Section 13 says that public announcement shall be made immediately after the appointment of Interim Insolvency Resolution Professional. 28. In view of the commence....