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TMI Blog2017 (5) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... to cure the defect, the impugned order cannot be upheld. Thus we set aside the order dated 12th April 2014 passed by the Adjudicating Authority. The application preferred by Operational Creditor under section 9 stands dismissed being incomplete. All orders, interim arrangement etc as has been made are vacated, moratorium as declared earlier is quashed, appointment of interim resolution professional also stands quashed. - Company Appeals (AT)(Ins) No.31 of 2017 - - - Dated:- 3-5-2017 - Justice S.J. Mukhopadhaya (Chairperson), Mr. Balvinder Singh (Member)(Technical) Mr. Manoj K. Singh, Mr. Vijaya Singh, Ms Bornali Roy, Mr Mahip Singh, Mr. Gyanendra Kumar, Mr. Tanuka De, Advocates for the appellant. ORDER The Appellant/ C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (I) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the other formalities were completed. It is further submitted that earlier a notice was issued to the Appellant/ Corporate Debtor under section 271 of the Companies Act, 2013, for winding up which should be treated to be a notice for the purpose of section 8 of the I B Code,2016. However, such submissions made on behalf of the Operational Creditor cannot be accepted in view of the mandatory provision under section 8 of the I B Code read with Rule 5 of Insolvency and Bankruptcy, (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as I B 'Rules' for short). 4. Insolvency resolution by an Operational Creditor can be initiated only on the occurrence of a default which is to be followed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erational Creditor after expiry of period of 10 days from the date of delivery of the notice or invoice demanding payment, as provided under sub-section (I) of section 9. 7. Only thereafter, in terms of sub-section (5) of Section 9, the Adjudicating Authority, within 14 days of receipt of the application, by an order is required to either admit the application, if complete or to reject the application if incomplete, provided seven days' time is granted for completion of the application if incomplete. As per clause (ii) (c) (d) of sub-section (5) of section 9, the adjudicating authority is required to reject the application, in absence of affidavit that the Operational Creditor in absence of delivery of demand of notice or invoice d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,- (a) the application made under sub-section (2) is complete; (b) there is no repayment of the unpaid operational debt; (c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-sectton (4), if any. Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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