2017 (12) TMI 1772

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....pany Law Tribunal), Chennai Bench, Chennai, whereby and whereunder the application preferred by Respondent M/s Arjun Chemicals Pvt Ltd (operational creditor) under Section 433(e) and 434 of the Companies Act, 1956 has been treated to be an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I&B Code) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, and the application has been admitted with order of moratorium. Name of the Interim Resolution Professional has been called for from the Insolvency and Bankruptcy Board of India (IBBI). 2. Learned counsel for the appellant submitted that before treating the petition for winding up as am applic....

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....." 10. Rule 5 relates to transfer of pending proceedings of winding up on the ground of inability to pay debts which 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 Tribunal established under sub-section (4) of Section 419 of the Act, exercising territorial jurisdiction ....

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....e', before admission of application and its filing, a demand notice under sub-section (1) of Section 8 is required to be issued on the 'Corporate Debtor', 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&....

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....has been paid." 5. In the present case as notice under sub-section (1) of Section 8 of I&B code has not been issued by the Respondent (operational creditor), we hold that the application preferred by the Respondent was incomplete. In this circumstances, we have no other option but to set aside the impugned order dated 28th July, 2017 passed by the National Company Law Tribunal, Chennai Bench, Chennai and declare that the application preferred by the Respondent under Section 433 of the Companies Act, 1956 stands abated. 6. In effect, order (s) passed by Ld. Adjudicating Authority appointing any 'Interim Resolution Professional' declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant t....