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TMI Blog2017 (12) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ication preferred by the Respondent- M/s. Rameesh Associates Pvt. Ltd. (Operational Creditor ) under Sections 433 and 434 of the Companies Act, 1956 has been treated to be an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as "Adjudicating Authority Rules, 2016"), the order of admission and Moratorium has been passed, name of Interim Resolution Professional has been called for from the Insolvency and Bankruptcy Board of India (hereinafter referred to as "Board") with further prohibitory orders in terms of I&B Code . 2. Learned counsel for the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 and disputed the liability. The case was adjourned to 20th June, 2017, on which date the counsel for the Appellant sought time to file reply. According to Appellant, no such opportunity was given and the transferred application has been treated to be an application under Section 9 of the I&B Code and was admitted by impugned order dated 20th June, 2017 giving rise to the present appeal. 7. Learned counsel for the Appellant submitted that no notice under sub-section (1) of Section 8 was issued in Form-3 or 4 prior to treating the application as under Section 9 of the I&B Code or before the admission. The application was also not filed in the proper format i.e. Form 5, as required under Section 9 of the I&B Code read with Rule 6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code, as the case may be, and 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 within sixty days from date of this notification, failing which the petition shall abate. 2. All cases where opinion has been forwarded by Board for Industrial and Financial Reconstruction, for winding up of a company to a High Court and where no appeal is pending, the proceedings for winding up initiated under the Act, pursuant to section 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment in respect of unpaid Operational Debt is to be issued by Operational Creditor . As per Rule 5(1) (a) & (b), the following person (s) are authorised to act on behalf of operational creditor, as apparent from the last portion of Form-3 and 4 which reads as follows: - "6. The undersigned request you to unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate insolvency resolution process in respect of [name of corporate debtor]. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Operational Debt , otherwise like any normal pleader notice/Advocate notice, like notice under Section 80 of C.P.C. or for proceeding under Section 433 of the Companies Act 1956, the Corporate Debtor may decide to contest the suit/case if filed, distinct Corporate Resolution Process, where such claim otherwise cannot be contested, except where there is an existence of dispute, prior to issue of notice under Section 8." 16. Form-5 is the format for filing application under section 9, as per which the following details are to be provided: - "Part I- particulars of applicant Part II- particulars of corporate debtor Part III-particulars of the proposed interim resolution professional (if proposed) Part IV- particulars of operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... &B Code in terms of Rule 5 of Transfer Rules, 2016. In such circumstances, in view of proviso to Rule 5 of the Transfer Rules, the application under Sections 433 and 434 of the Companies Act, 1956 stands abated. 19. For the reasons aforesaid, while we set aside the impugned order dated 20th June, 2017 passed by the Adjudicating Authority, Chennai Bench in T.C.P No. 263/(IB)/2017, also declare that the application preferred by Respondent under Sections 433 and 434 of the Companies Act, 1956 stood abated. 20. In effect, order (s) passed by Adjudicating Authority appointing Interim Resolution Professional , declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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