9911796707
TMI Blog2017 (11) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... dv. ORDER This is an Application filed by M/s. Green Power Engineers Pvt. Ltd. representing itself to be a Creditor of M/s. Faith Merchantile Pvt. Ltd. being its debtor in relation to a claim of ₹ 21,70,092/-, as the amount in default along with interest and remains unpaid. The brief facts as can be culled out from the Application along with the synopsis filed is as follows:- 2. The Debtor, it is averred had placed a purchase order dated 10.1.2012 towards Scrubbing Systems, Balance of Plant and Heat Recovery System for 1200 KWeMWM Gas Genset for a sum of ₹ 2,19,30,000/- subsequently amended vide letter dated 12.4.2012 by the Debtor bearing purchase order No. FMPL/2011-12 into two portions - one being supply of balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement of notification issued by the Central Government in order to continue the matter with this Tribunal, however, due to laxity on the part of the Ld. Counsel the same was not followed up. However, it is averred that in any case the Creditor had issued a notice of demand against the Corporate Debtor in Form-3 dated 15.6.2017 which had also been replied to by the Debtor denying the liability on flimsy and false grounds and in the circumstances this Petition/application has been filed under Section 9 of IBC, 2016 as applicable to an Operational Creditor for initiating the Corporate Insolvency Resolution Process in relation to a Corporate Debtor. 4. Consequent to the filing of this Petition on 8.8.2017 by the Creditor, the same was li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Banker s Certificate, as mandated under Section 9(3)(c) of IBC, 2016. This Tribunal is afraid whether such a plea can be entertained as made by the Petitioner ignoring the statutory mandate as given under Section 9(3)(c) which is reproduced hereunder: 9(1) .xxxx 9(2) .xxxx 9(3)(c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and Further section 9(5) of IBC, 2016 also enunciates the circumstances under which the Adjudicating Authority can admit a Petition or reject a Petition and the said section is reproduced below:- 9(5) The Adjudicating Authority sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en days of the date of receipt of such notice from the Adjudicating Authority. 6. Taking into consideration the proviso to section 9(5) of IBC, 2016 the Petitioner was given an opportunity on 16.8.2017 to rectify the defect in complying with the provisions of Section 9(3)(c) and as well as for any other compliance. However, it is represented on behalf of the Petitioner that Banker s Certificate is not able to be produced. Thus only course this Tribunal can adopt in view of the above provision of IBC, 2016 and also as held by the Hon ble NCLAT in the Judgment rendered in the case of Smart Timing Steel Ltd. v. National Steel Agro Industries Ltd. in Company Appeal (AT) (Insolvency) No. 28/2017 to the effect that failure to abide by the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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