2021 (1) TMI 901

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....n filed by the Appellant - Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the Respondent - Corporate Debtor stands dismissed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench Ahmedabad Court II in terms of the impugned order dated 15th June, 2020 on the ground that the same was non-maintainable. The impugned order is assailed, inter-alia, on the ground that the Adjudicating Authority has violated the mandate of law in not providing opportunity to the Appellant for rectifying the defect or remove the shortcomings. 2. After hearing learned counsel for the parties for a while, we find that the finding in regar....

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....ute an expression of opinion on the merit of controversy" 4. Reading Para 11 in juxtaposition with Para 14, it is absolutely clear that application has been dismissed on the issue of non-maintainability which relates to omission in appending of signatures on the application in the prescribed format in Form 5 and the same being notarized. We take notice of the fact that the Adjudicating Authority has noticed the Board Resolution passed on 28th September, 2018 authorising one Mr. Praveen Kumar B. Mundra, Manager to file legal proceedings including proceedings under I&B Code. Once the filing of the application under Section 9 was backed by the Board Resolution and Adjudicating Authority had noticed that two Advocates viz. Mr. Niraj Shah and....

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....ate such decision to the operational creditor and the corporate debtor, if - (a) the application made under sub-section (2) is incomplete; (b) there has been [payment] of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his applicatio....