TaxTMI 
TaxTMI 
2018 (3) TMI 1889
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....y 'M/s. Kanti Commercials Private Limited', Shareholder of 'Falcon Tyres Limited' ('Corporate Debtor') against order dated 30th August, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Bengaluru Bench in CP (IB) No. 01/BB/2017, whereby and whereunder the application preferred by the Respondents- 'Belthangady Taluk Rubber Growers Marketing & Processing Co-operative Society Ltd. & Ors'. ('Operational Creditor') under section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I & B Code') has been admitted, order of 'Moratorium' has been passed and 'Interim Resolution Professional' has been appointed with certain directions. 2. As t....
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....2014. Hence, it is a fit case for initiation of 'Corporate Insolvency Resolution Process'. 6. Mr. Krishnamurthy, learned counsel appears on behalf of the 'Insolvency Resolution Professional'. 7. In the present case, it is not necessary to decide whether there is an 'existence of dispute' between the parties or not, as we find that the suit between the parties was pending since prior to issuance of demand notice under sub-section (1) of Section 8 of the 'I & B Code'. 8. The Hon'ble Supreme Court in "Mobilox Innovations Private Ltd. v. Kirusa Software Private Ltd., (2018) 1 SCC 353", having noticed the provisions of Sections 8 and 9 of the 'I & B Code', observed and held as follows:- ....
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....yment from the corporate debtor (Section 8(2)(b)). It is only if, after the expiry of the period of the said 10 days, the operational creditor does not either receive payment from the corporate debtor or notice of dispute, that the operational creditor may trigger the insolvency process by filing an application before the adjudicating authority under Sections 9(1) and 9(2). This application is to be filed under Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 in Form 5, accompanied with documents and records that are required under the said form. Under Rule 6(2), the applicant is to dispatch by registered post or speed post, a copy of the application to the registered office of the corporate debtor....
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....fessional proposed by the operational creditor (Section 9(5)(i)(e)), it shall admit the application within 14 days of the receipt of the application, after which the corporate insolvency resolution process gets triggered. On the other hand, the adjudicating authority shall, within 14 days of the receipt of an application by the operational creditor, reject such application if the application is incomplete and has not been completed within the period of 7 days granted by the proviso (Section 9(5)(ii)(a)). It may also reject the application where there has been repayment of the operational debt (Section 9(5)(ii)(b)), or the creditor has not delivered the invoice or notice for payment to the corporate debtor (Section 9(5)(ii)(c)). It may also ....
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....9. As, admittedly the suit between the parties was pending before the date on which demand notice was issued under sub-section (1) of Section 8 of the 'I & B Code' and was also pending when the application under Section 9 of the 'I & B Code' was admitted, we hold that the application under section 9 of the 'I & B Code' was not maintainable. For the reasons aforesaid, we set aside the order dated 30th August, 2017 passed by Adjudicating Authority, Bengaluru Bench in CP (IB) No. 01/BB/17 and allow the appeal. 10. However, suit having already been withdrawn, it is open to any of the 'Financial Creditors' or 'Operational Creditors', including the 1st Respondent and the workmen to move fresh application....