2017 (9) TMI 856 - Tri - Insolvency and Bankruptcy

Corporate insolvency resolution process - non-compliance of requisite statutory requirement given in Secs.8 and 9 of the I & B Code - operational creditor has not issued demand notice prescribed - Held that - In this case it is undisputed, that before filing an application in Form 5 under the I & B Code operational creditor has not issued demand notice prescribed in form and operational creditor has also not annexed affidavit relating to the fact that there is no notice given by the corporate debtor relating to the dispute of unpaid operational debt. Certificate from financial institution has not been annexed to show that no payment of unpaid operational debt has been made by the corporate debtor. This requirement of complying with the statutory requirements of sub-clause (3) of Sec.9 of the I & B Code is mandatory for initiating corporate insolvency process and only on completion of the conditions mentioned aforesaid, petition can be admitted under the provision of clause 5 of Sec.9 of the I & B Code. In Sec. 5 condition has been prescribed for admitting the petition which clearly specifies that if the application made under sub-sec. (2) is complete and there is no repayment of unpaid operational debt and invoice or notice was made to the corporate debtor has been delivered by the operational creditor and no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility and there is no disciplinary proceeding pending against the resolution professional proposed then adjudicating authority has to admit the petition under Clause 5 Sec.9. The application for initiating corporate resolution process against the corporate debtor is rejected due to non-compliance of requisite statutory requirement given in Secs.8 and 9 of the I & B Code

Summary

Issues involved:
Initiation of corporate insolvency resolution process under Sec.9 of Insolvency and Bankruptcy Code, 2016 without compliance of statutory requirements.

Detailed Analysis:

1. Application under Sec.9 of I & B Code: The Applicant filed an application under Sec.9 of the Insolvency and Bankruptcy Code, 2016 for the initiation of corporate insolvency resolution process against the corporate debtor, citing an amount due of &8377; 77,00,000 based on a purchase order and default in supply of goods.

2. Non-Compliance with Notice Requirement: The corporate debtor contended that the application was not maintainable as it was not preceded by a notice in Form 4 as required by the Adjudicating Authority Rules, 2016. The absence of a notice in Form 3 or 4 before filing the petition under the I & B Code was highlighted, emphasizing the importance of strict compliance with Sec. 8 of the Code.

3. Mandatory Compliance with Sec.8 and Sec.9: The judgment emphasized the mandatory nature of complying with Sec.8 and Sec.9 of the I & B Code. It was noted that the petition was filed without issuing the demand notice as prescribed, and the application did not include the necessary documents such as an affidavit regarding the absence of a dispute notice and a certificate from financial institutions confirming non-payment of debt.

4. NCLAT Precedent: Referring to a specific NCLAT case (Company Appeal 39 of 2017), the judgment reiterated the requirements under Sec.9, including the furnishing of specific documents along with the application. The judgment highlighted the mandatory nature of these requirements, emphasizing the word "shall" in sub-section (3) of Sec.9.

5. Rejection of Application: Due to the non-compliance with the statutory requirements of Sec.8 and Sec.9, the Tribunal rejected the application for initiating the corporate resolution process against the debtor. The order clarified that this rejection did not affect the petitioner's right to pursue the claimed amount through other legal provisions.

In conclusion, the judgment focused on the importance of strict compliance with the statutory provisions of the Insolvency and Bankruptcy Code, particularly regarding the issuance of demand notices, submission of required documents, and adherence to procedural requirements. The rejection of the application underscored the significance of meeting these prerequisites for initiating the corporate insolvency resolution process.