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TMI Blog2021 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 in CP (IB) No. 79/BB/2019 passed by the 'Adjudicating Authority' (National Company Law Tribunal, Bengaluru bench) in disposing of the 'Application' (filed by the Appellant/Applicant under section 9 of the I & B Code, 2016) by issuing necessary directions mentioned therein. Earlier, the Adjudicating Authority National Company Law Tribunal, Bengaluru Bench, while passing the Impugned order on 23.02.2021 at Paragraph 5 to 7 had observed the following: 5 . "Since initiation of insolvency proceedings involves various proceedings where IRP/RP is to contemplated under the supervision of IRP/RP, where IRP/RP is to be assisted by the Management/staff of the Corporate Debtor, it is CIRP necessary that Corporate Debtor should be aware of CIRP man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Debtor Active compliance was Active Non-Compliance. Since the year of 2016, the Corporate Debtor has failed to file its statutory returns. However, it is not known whether the Company is on active rolls of the ROC or not. If the Company failed to comply with statutory compliances, the ROC can take appropriate action to strike off it. And while striking off the Company, ROC can take into consideration of interest of Petitioner herein, in terms of extant provisions of Companies Act, 2013, and the Rules made thereunder. 8. For the aforesaid reasons and circumstances of the case, the Company petition is barred by laches and limitation, and it is filed with an intention to recover alleged debts, which is against the object of Code etc.", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial crisis. In fact, the Respondent had failed to effect payments due and the invoices were still only partly settled till February, 2018 and that a sum of Rs. 15, 74, 803/- was still due an payable by the Respondent to the 'Appellant'. 5. It is the stand of the 'Appellant' that the 'Appellant/Operational Creditor issued a demand notice in Form 3 on 12.06.2019 and for the nine invoices beginning from 01.03.2017 till 01.12.2017, a sum of Rs. 22, 69, 777.95 rounded off to Rs. 22,69,778/- was due and payable by the 'Corporate Debtor' for the services rendered by the 'Appellant/Operational Creditor'. In Part IV of the Form 5, the 'Appellant/Operational Creditor' had averred that the amount due to be paid by the Corporate Debtor along wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss the impugned order under the Code, 2016 and further, in the impugned order it had not stated that in what capacity the Registrar of Companies, Bengaluru be entitled to protect the interest of the Appellant/Operational Creditor. In short, it is the clear cut plea of the 'Appellant' that inspite of the fact that the 'Appellant/Operational Creditor had fulfilled the criteria as specified under section 9 of the Code, 2016, still the Adjudicating Authority had passed an irrational order, which is in violation of Law of the Land. 10. The Learned Counsel for the 'Appellant/Operational Creditor brings to the notice of this Tribunal that the 'Adjudicating Authority' had failed to consider the email dated 15.07.2020 issued by the Respondent to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the absence/ there being no representation of the Respondent, to hold that 'service was held sufficient' and to proceed further, as per Rule 49 of the NCLT Rule, 201Rs. 6 under the caption 'Ex parte hearing and disposal'. 14. In the present case the debt fell due on 01.02.2017 being the date of last invoice raised by the 'Appellant/Operational Creditor. The 'Application' was filed before the Adjudicating Authority in the year 2019 which is well within the period of Limitation. In reality, the Adjudicating Authority had committed an error in making an observation that the 'Application' suffered from ' Delay and Latches' and the same is clearly unsustainable in the eye of Law, in the considered opinion of this 'Tribunal'. 15. It cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he corporate Debtor had complied with the statutory requirement and to take appropriate action etc., and suffice it for this 'Tribunal' to make a relevant observation in the present 'Appeal' that such directions issued by the Adjudicating Authority cannot be countenanced in the eye of Law. Viewed in this perspective, this 'Tribunal', set asides the impugned order passed by the Adjudicating Authority. Consequently the "Appeal' succeeds. In fine, the instant 'Appeal' Comp App (AT) (Ch) (Ins) No. 41/2021 is allowed. No costs. The impugned order dated 23.02.2021 passed by the Adjudicating Authority in CP (IB) No. 79/BB/2019 is set aside. The Adjudicating Authority is directed to restore the CP (IB) No. 79/BB/2019 to its file and to pass an 'or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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