2023 (7) TMI 1026

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....he order dated 31.08.2022, passed by the 'Adjudicating Authority' (National Company Law Tribunal, Jaipur Bench), by which an application bearing No. CP No.(IB)-149/9/JPR/2019 filed by 'Madhu Sharma, Proprietor M/s. Hind Chem Corporation' (Operational Creditor), under Section 9 of the 'Insolvency and Bankruptcy Code, 2016' (in short 'Code'), has been admitted and 'Corporate Insolvency Resolution Process' (CIRP) against ' Shubh Aluminium Pvt. Ltd.' (Corporate Debtor), has been initiated. 2. Shorn of unnecessary details, the application, under Section 9 of the Code was filed by the Operational Creditor in form-5 as prescribed under Rule 6(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, in which the fol....

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....cording, the Respondent counsel submits that they will pay the entire amount and CP is liable to be dismissed. However, the same is disputed by the Petitioner's counsel. In the circumstances, the Petitioner's counsel shall the affidavit placing all the facts within two weeks. The Respondent's counsel may also file response to the said affidavit within three weeks thereafter. List the matter on 26.10.2021." 4. The Respondent then filed an affidavit dated 13.08.2021 in which the followings averments were made: "That, it is worth mentioning that the Corporate Debtor has from the very beginning of the proceedings have denied any amount in default and later when the pleadings had completed and when the sword of the insolv....

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....n the decision rendered by 'this Tribunal' in case of 'S.S.Polymers Vs. Kanodia Technoplast Limited' in 'Company Appeal (AT) (Ins) No. 1227 of 2019 decided on 13.11.2019' in which a similar controversy was involved and the following observations have been made which read thus: "3. The Adjudicating Authority has noticed that a sum of Rs.25,00,000/- out of Rs.32,71,800/- was paid to the Appellant by 31st December, 2018 through RTGS(s). The remaining amount of Rs.7,71,800/- was also paid by 'Corporate Debtor' to the Applicant by 17th January, 2019 through NEFT(s). The said amounts were paid before the admission of the application under Section 9 of the I&B Code. Even after receiving the total amount due, the Appellant pursued the appl....

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....mmit any error in rejecting Section 9 Application. It has been laid down by the Hon'ble Supreme Court in "Swiss Ribbon Pvt. Ltd. Vs. Union of India" (2019) 4 SCC 17), IBC is not a recovery proceeding and the Application which has been filed by the appellant in the present case is only the application for recovery of balance amount of the interest and application was not filed for resolution of any insolvency of the Corporate Debtor. We are of the view that no error has been committed by the Adjudicating Authority in rejecting Section 9 Application filed by the Appellant. There is no merit in the Appeal, the Appeal is dismissed." 8. He has also referred to a decision of 'Hon'ble High Court of Karnataka' in 'Jyothi Limited Vs. Boving Foure....