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TMI Blog2018 (1) TMI 951X X X X Extracts X X X X X X X X Extracts X X X X ..... view of proviso to Rule 5 of the Transfer Rules, the application under Sections 433 and 434 of the Companies Act, 1956 filed by 1st Respondent stands abated. For the reasons aforesaid, while we set aside the impugned order dated 12th October, 2017 passed by the Adjudicating Authority, Chennai also declare that the application preferred by the 1st Respondent under Sections 433 and 434 of the Companies Act, 1956 stood abated. - Company Appeal (AT) (Insolvency) No. 248 of 2017 - - - Dated:- 28-11-2017 - Mr. S.J. Mukhopadhaya And Bansi Lal Bhat, JJ. For The Appellant : Mr. Amit Sibal, Senior Advocate with Mr. Aditya Verma, Mr. Aditya Gupta, Mr. Avinash Amarnath, Mr. Vinay Tripathi and Mr. Ambar Doshan, Advocates For The Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case are that the 2nd Respondent- Corporate Debtor placed various purchase orders during the years 2012-13 and 2013-14 with the 1st Respondent Operational Creditor for the supply of cables. The 1st Respondent was then known as General Cable Energy (India) Ltd . The Appellant is a Shareholder and Managing Director of the Corporate Debtor . According to the Appellant, as per the purchase orders the 1st Respondent Operational Creditor was required to provide a warranty for 36 months, and that during 2015, the Corporate Debtor came to know that it was not going to be possible for the Respondent Operational Creditor to provide the warranty. According to Appellant, the Corporate Debtor clearly indicated the 1st respondent that in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of the application. It is also submitted that the application was also not filed in Form 5, as required under Section 9 of the I B Code read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 as per which records of dues and default were required to be provided. 7. The aforesaid stand taken by the Appellant has not been disputed by the 1st Respondent ( Operational Creditor ). 8. Learned counsel for the Appellant has brought to our notice the Central Government s notification dated 7th December, 2016 issued from the Ministry of Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vency 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 of the Sick Industrial Companies (Special Provisions) Act, 1985 shall continue to be dealt with by such High Court in accordance with the provisions of the Act. 10. From the aforesaid Rule 5, it is clear after transfer of the case the Applicant (Respondent herein) was required to submit all information, other than in formation forming part of the records tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 14. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed above, the application under sections 433 and 434 of the Companies Act, 1956 cannot be treated to be an application under section 9 of the I B Code in terms of Rule 5 of Transfer Rules, 2016. For such failure to provide the information, in view of proviso to Rule 5 of the Transfer Rules, the application under Sections 433 and 434 of the Companies Act, 1956 filed by 1st Respondent stands abated. 18. For the reasons aforesaid, while we set aside the impugned order dated 12th October, 2017 passed by the Adjudicating Authority, Chennai in T.C.P No. 4/(IB)/CB/2017, also declare that the application preferred by the 1st Respondent under Sections 433 and 434 of the Companies Act, 1956 stood abated. 19. However, liberty is given to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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