TaxTMI 
TaxTMI 
2023 (2) TMI 898
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....tcy Code, 2016 (in short 'Code') r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short 'Rules') in the matter of 'Ahluwalia Contracts (India) Limited (ACIL) (Operational Creditor) against Assotech Milan Resorts Pvt. Ltd. (Corporate Debtor). Suresh Chandra Pattanayak was appointed as an Interim Resolution Professional (in short 'IRP') and moratorium was imposed. 2. The brief facts of this case are that the Corporate Debtor awarded construction work through a contract agreement dated 02.02.2011 to the Operational Creditor. The construction work was suspended w.e.f. 13.01.2012 due to certain government restraints. However, the Operational Creditor, through its letters demanded compensation for idle cost, administrative cost, depreciation, losses etc. The Corporate Debtor vide its email dated 07.08.2013 settled the claim on account of salary, idle equipment, rental and depreciation at Rs. 175 lakhs and outstanding payment against the verified bills of Rs. 40,26,474/-. Since the construction work did not start, therefore, the Operational Creditor sent a notice dated 28.12.2015 under Section 433 of the Companies Act, 1956 (in short 'th....
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....dments made in Section 434 of the Companies Act, 2013 as applicable to the I&B Code by Act 26 of 2018, the winding up petition which has been filed on the ground of company unable to pay its debt for treating the application under Section 9 of the Code notice under Section 8 of the Code is mandatory and without service of notice under Section 8 proceedings so transferred cannot be treated as proceedings under Section 9? ii. Whether law laid down by this Tribunal in "Shailendra Sharma, Director of R&M International Pvt. Ltd. Vs. Ercon Composites (Through IRP Mr. Nayana Premji Savala) & Anr.", "Sabari Inn Pvt. Ltd. Vs. Rameesh Associates Pvt. Ltd." and Mosmetro Story (FZE) Vs. BASF India Ltd. & Anr." lays down the correct law?" 5. Hence, this matter is placed before this bench to answer the aforesaid two questions. 6. As regard the first question, Counsel for the Appellant has vehemently argued that an application filed by the Operational Creditor under Section 9, after transfer of winding up petition, without serving notice under Section 8 of the Code, is not maintainable because prior notice under Section 8 of the Code is a mandatory requirement. It is further argued that eve....
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....ules, 2016, referred to by the Appellant, the Respondent was to furnish information which does not contain the issuance of a fresh notice in terms of Section 8 of the Code. He has further submitted that even otherwise the language used in Section 8 is that the Operational Creditor may on the occurrence of default deliver a demand notice which means that it has to be delivered on the occurrence of default which is in prasenti and not in the past. It is further argued that in so far as the requirement of Section 9(3)(a) is concerned, it has also been fulfilled when the petition under Section 434 of the Act, 1956 was filed. It is further argued that the decisions rendered in the aforesaid three cases which have been doubted by the order dated 25.11.2022 are not laying down the correct law. 8. We have heard Counsel for the parties and perused the available records with their able assistance. 9. Before we advert to the respective submissions made by Counsel for the parties, it would be relevant to refer to the scheme of the Code in so far as an application under Section 9 is to be filed and maintained. Section 9 of the Code deals with the initiation of the CIRP by an Operational Credi....
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....ent in this behalf,- (a) all matters, proceedings or cases pending before the Board of Company Law Administration (herein in this section referred to as the Company Law Board) constituted under sub-section (1) of section 10E of the Companies Act, 1956 (1 of 1956), immediately before such date shall stand transferred to the Tribunal and the Tribunal shall dispose of such matters, proceedings or cases in accordance with the provisions of this Act; (b) any person aggrieved by any decision or order of the Company Law Board made before such date may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Company Law Board to him on any question of law arising out of such order: Provided that the High Court may if it is satisfied that the appellant was prevented by sufficient cause from filing an appeal within the said period, allow it to be filed within a further period not exceeding sixty days; and (c) all proceedings under the Companies Act, 1956 (1 of 1956), including proceedings relating to arbitration, compromise, arrangements and reconstruction and winding up of companies, pending immediately before such date be....
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.... - "5. [Transfer of pending proceedings of Winding up on the ground of inability to pay debts.- (1) All petitions relating to winding up of a company 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 under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Companies Act, 2013 exercising territorial jurisdiction to be dealt with in accordance with Part II of the Code: Provided that the petitioner shall submit all information, other than information forming part of the records transferred in accordance with rule 7, required for admission of the petition under sections 7, 8 or 9 of the Code, as the case may be, including details of the proposed insolvency professional to the Tribunal upto 15th day of July, 2017, failing which the petition shall stand abated: Provided further that any party or parties to the petitions shall, after the 15th day of July, 2017, be eligible to file fresh applications under sections 7 or 8 or 9 of the Code, as the case may be....
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....erred to two decisions of the Hon'ble Supreme Court in the case of 'Kaledonia Jute & Fibers Pvt. Ltd. Vs. Axis Nirman and Industries Limited & Ors.', (2021) 2 SCC 403 and 'Action Ispat and Power Pvt. Ltd. Vs. Shyam Metalics and Energy Limited', (2021) 2 SCC 641, but both the decisions are deciding different issues not relevant for the present controversy. 14. Thus, in our considered opinion, looking from any angle, there is no requirement of issuance of a fresh notice under Section 8 of the Code as it cannot be read as a part of the 'submission of information' as provided in first proviso to Rule 5 of the Rules, 2016. 15. Consequently, the first question is answered to the effect that after the transfer of winding up proceedings as per Rules 2016 read with amendments made in Section 434 of the Act, 2013 as applicable to the Code by Act 26 of 2018, if the winding up petition has been filed on the ground that the Company is unable to pay its debt, for treating the application under Section 9 of the Code, notice under Section 8 of the Code is not necessary or mandatory and a petition under Section 9 shall be maintainable without service of notice under Section 8 of the Code. 16. In....