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TMI Blog2018 (4) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... e details as required under Form-5 as 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. 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. Liberty is given to the 1st Respondent to issue fresh notice under sub-section (1) of Section 8 of the ‘I&B Code’ and on service of such notice if there is a debt and default or no dispute is raised, it will be open to the 1st Respondent to file fresh application under Section 9 of the ‘I&B Code’ after ten days of service of such notice. - Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (1) of Section 8 of the I B Code was issued, nor relevant information in terms of Part IV of Form 5 were provided by the Financial Creditor (Respondent herein). Reliance has been placed on the decision of this Appellate Tribunal in M/s. Sabari Inn Pvt. Ltd. Vs. M/s. Rameesh Associates Pvt. Ltd.─ Company Appeal (AT) (Insolvency) No. 117 of 2017 and MosmetroStroy (FZE) Vs. BASF India Ltd. Anr.─ Company Appeals (AT) (Insolvency) Nos. 229 230 of 2017 . 3. Similar issue fell for consideration before this Appellate Tribunal in M/s. Sabari Inn Pvt. Ltd. (Supra) , wherein this Appellate Tribunal by judgment dated 17th November, 2017, noticed Rule 5 and held as follows: 9. Learned counsel for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 11. From the aforesaid Rule 5, it is clear after transfer of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 16. Form-5 is the format for filing application under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 5, other informations were also not placed before the Adjudicating Authority. 18. The Respondent having failed to provide all the details as required under Form-5 as 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. 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. 4. Learned counsel appearing on behalf of the Respondent ( Operational Creditor ) while accepting that no demand notice under sub-section (1) of Section 8 of the I B Code was issued and relevant informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratorium, freezing of account and all other order (s) passed by the Adjudicating Authority pursuant to impugned order and action, if any, taken by the Resolution Professional , including the advertisement, if any, published in the newspaper calling for applications and all such orders and actions are declared illegal and are set aside. The application preferred by the 1st Respondent is dismissed as abated. Learned Adjudicating Authority will now close the proceeding. The 2nd Respondent company ( Corporate Debtor ) is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect. 10. The Adjudicating Authority will fix the fee of Resolution Professional , and the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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