AI Drafter 
TaxTMI 
TaxTMI 
2022 (9) TMI 17
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....ted against the order dated 12.01.2022 passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench) by which an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by Jyoti Maheswari (Sole Proprietor) running her business under the name and style "Unique Security Organisation" against Rajprotim Agencies Pvt. Ltd. (Corporate Debtor) was admitted. 2. In brief, the Operational Creditor, before invoking the provision of Section 9 of the Code, served a notice dated 05.12.2019 upon the Corporate Debtor which is in fact a sine qua non for proceeding further to initiate Corporate Insolvency Resolution Process (in short 'CIRP'). It is an admitted fact that notice was received by t....
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.... 1 Crores as the minimum amount of default for the purpose of invoking the provisions of the Code. It is submitted that once the threshold was changed during the pendency of the application from Rs. 1 Lac to 1 Crore, the Adjudicating Authority was not having the jurisdiction to entertain and hear the application. In this regard, he has referred to two decisions of the Hon'ble Supreme Court rendered in the case of Neena Aneja & Anr. Vs. Jai Prakash Associates Ltd., (2022) 2 SCC 161 and Ramesh Kymal Vs. Siemens Gamesa Renewable Power Pvt. Ltd. (2021) 3 SCC 224. He has further submitted that the application filed under Section 9 of the Code is also not maintainable because of Section 8(2)(a) of the Code there was a pre-existing dispute. In thi....
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....are similar to the case in hand and the issue involved is also the same on which this Tribunal has held that the change in the threshold during the pendency of the application for adjudication will not affect the jurisdiction of the Tribunal as the notification dated 24.03.2020 is prospective and not retrospective. As far as, the pre-existing dispute is concerned, it is submitted that the Appellant has been making the payments to the Operational Creditor even till December, 2017 and in this regard, he has referred to Pg. 191 much less to the statement dated 21.12.2017 as per which a sum of Rs. 10 lacs which was paid by the Appellant to the Operational Creditor. It is also submitted that this fact has also duly noticed in the impugned order ....
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....aid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 2[payment] of the operational debt in respect of which the default has occurred." 7. The aforesaid provision shows that the Operational Creditor shall have to deliver demand notice of the unpaid operational debt alongwith copy of the invoices upon the Corporate Debtor in the form an....
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....to it no such application was filed rather the present appeal has been filed in which the issue of pre-existing dispute which is purely an issue of fact has been raised. The facts and circumstances, narrated hereinabove indicates the casual approach or some kind of arrogance of the Appellant for not responding to the notice issued by the Operational Creditor till the culmination of the proceedings before the Adjudicating Authority. In any case, in respect of the legal issue which has been raised by the Appellant that if the application is filed at the time when the threshold was Rs. 1 lac and during the pendency of the application the threshold is changed Rs. 1 lac to 1 Crore the application has to be dismissed, it would be suffice to say t....
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.... drawn for such a construction in the context in issue. That apart, if the notification dated 24.03.2020 of the Ministry of Corporate Affairs, Government of India, is made applicable to the pending applications of IBC (filed earlier to the notification in issue) it will create absurd results of wider implications / complications." 8. Therefore, we do not agree with the contention of the Appellant, insofar this argument is concerned and the same is hereby rejected. As regard the issue of pre-existing dispute is concerned, there is no evidence brought on record by the Appellant in this regard, except for referring to invoices relied upon by the Operational Creditor to contend that those invoices pertains to a new company i.e. Rajprotim Sup....