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TMI Blog2020 (2) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... undisputed fact that the Petitioner herein is undergoing CIRP. Insolvency resolution process can be started against a corporate debtor. Such a corporate debtor cannot initiate CIRP by virtue of section 11(a) of I B Code. Section 25 of I B Code provides duties of the Resolution Professional. Sub-clause (1) of section 25 of I B Code provides duties of the Resolution Professional to preserve and protect the assets of the corporate debtor including the continued business operations of the corporate debtor. Sub-clause (a) of section 25 of I B Code provides that Resolution Professional to take custody and control of all the assets of the corporate debtor. Sub-section 2(b) of section 25 of I B Code provides that the Resolution Profess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code and Rules thereon. AVERMENTS 2. The facts germane to the Petition in brief are:- (1) The Operational Creditor is engaged in manufacturing and supply of steel products and Corporate Debtor is engaged in trading of steel products. The Corporate Debtor placed purchase orders for supply of certain steel products on 27.04.2015 and supplies were made by the Operational Creditor during July to November 2015 who raised invoices for the value of goods supplied amounting to ₹ 148,65,55,934/-. Copy of the Purchase Order is annexed and marked as Annexure -5 at Page No. 32. (2) Despite making several demands to the Corporate Debtor for repaying the amount due to the Operational Creditor, it failed to make payment. Corporate De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Corporate Debtor. 6. It is the case of Petitioner/Operational Creditor that it supplied steel products to Corporate Debtor from July to November 2015 and the Corporate Debtor failed to make payments which is to the tune of ₹ 148,65,55,934/-. The Operational Creditor in order to prove the debt has relied on the documents annexed and marked as Annexures A-4 to 8. The Corporate Debtor has acknowledged the debt on 12.04.2018. According to the Learned Counsel for Operational Creditor the claim is within limitation. The demand notice in Form-2 dated 18.01.2019 for an amount of ₹ 148,65,55,934/- has been duly received by Corporate Debtor on 21.01.2019 (Annexure-A-9 to the Petition). The Operational Creditor has also suggested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resolution process; or 10. Thus, section 11 of I B Code deals with the persons not entitled to make application. The persons shown in clauses (a) to (d) of section 11 of I B Code shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter. We are looking into section 11(a) of I B Code which provides that a corporate debtor undergoing CIRP is not entitled to make an application to initiate CIRP. 11. It is an undisputed fact that the Petitioner herein is undergoing CIRP. Insolvency resolution process can be started against a corporate debtor. Such a corporate debtor cannot initiate CIRP by virtue of section 11(a) of I B Code. 12. The learned counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the I B Code or corporate applicant in terms of section 10 of the I B Code. Section 11 of I B Code is very clear that person undergoing CIRP is not entitled to file application to initiate CIRP. That Resolution Professional is now appearing for the petitioner. He authorised the learned counsel for the petitioner to continue the proceedings. The learned counsel contended that when Resolution Professional is representing the petitioner then the proceedings can be continued by the Resolution Professional on behalf of the petitioner. There is bar in section 11 of I B Code that filing application to initiate CIRP by a corporate debtor undergoing CIRP. Even Resolution Professional appointed for the petitioner cannot maintain this petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 145 SCL 449 17. We have seen the decision of the Principal Bench, NCLT, New Delhi in the matter of Tecpro Systems Ltd. v. Bajaj Infrastructure Company Ltd., 2017 SCC Online NCLT 9998, wherein the Principal Bench, NCLT, New Delhi held that the company which is undergoing insolvency process is barred to initiate insolvency resolution process under section 11(1) of the IBC. 18. The NCLT, New Delhi (Court No.IV) in a decision dated [30-08-2018] rendered in Company Petition No. (IB)-301 (ND)/2018, in the matter of Mandhana Industries Ltd. v. Instyle Exports (P.) Ltd. held that the company undergoing corporate insolvency resolution process cannot file application to initiate corporate insolvency resolution process by virtue of bar under se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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