9911796707
TMI Blog2022 (4) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... on 9 of the Code. The application under Section 9 of the Code does not come under the purview of the 'suits'. The proceedings before the NCLT under Section 9 are concerned, that are not in the nature of the suit or miscellaneous proceeding rather that is application moved by the party against the defaulting Corporate debtor for initiation of CIR proceedings. It is settled principle of law that NCLT is not entitled to go into the depth of the matter and law does not permit Tribunal to decide the matter on contentious issues, which are to be decided by Civil Courts. A reference can also be made to B.K. Educational Services Pvt. Ltd. Vs. Parag Gupta Associates [ 2018 (10) TMI 777 - SUPREME COURT] , wherein it is held that CIR proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tstanding balance of ₹ 22,66,872/- on account of supply of bags of Cement to the corporate debtor. 2. The details of transactions leading to the filing of this petition as averred by the applicant are as follows:- a. The corporate debtor issued multiple Purchase Orders for supply of specified quantity of Wonder Cement bags-OPC 43 Grade and applicant supplied the required cement bags to the corporate debtor. The applicant issued invoices from 17.05.2018 to 15.12.2018. It is claimed in the application that there is no dispute regarding quantity or quality of goods. The Invoices have been duly endorsed by the corporate Debtor and part payments were also made by corporate debtor for the cement received by it. b. The applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al word 'Suit. Reliance has been placed on judgment passed by Hon'ble Supreme Court in Patel Roadways Limited vs Birla Yamaha Limited passed on 28 March, 2000. 4. We have heard the arguments and thoroughly perused the case records. The corporate debtor has raised objection the applicant being an unregistered partnership firm is not entitled to file present application in terms of Section 69 of the Indian Partnership Act, 1932. Section 69 has been reproduced below: 69. Effect of non-registration.- (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Small Cause Courts Act, 1882 (5 of 1882), or, outside the Presidency-towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim. State Amendments. 5. From the bare perusal of the above said Section 69 of Indian Partnership Act, it is apparent that the effect of non-registration of the firm would adversely effect to the suit and not to the applications alike that of under Section 9 of the Code. The application under Section 9 of the Code does not come under the purview of the 'suits'. The proceedings before the NCLT under Section 9 are concerned, that are not in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of evidence on the record and parties are being given opportunity to lead the matter, therefore, the proceedings before NCDRC are being permitted to be contested like that of a Civil Suit, whereas, the proceedings before the NCLT are summary in nature and it is not permissible for Adjudicating Authority to look-into any question on merits. Hence, the above said citation is not helpful to the respondent and to act as Civil Courts. Accordingly, it is held that applicant being un-registered firm can maintain the application under Section 9 of the Code against the respondent-Corporate Debtor. Moreover, in the matter of B.K. Educational Services Pvt. Ltd. (Supra), it is already by the Hon'ble Apex Court that the proceedings unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, 2016. The needful shall be done within one week from the date of receipt of this order by the Operational Creditor. The amount however be subject to adjustment by the Committee of Creditors, as accounted for by Interim Resolution Professional, and shall be paid back to the Operational Creditor. 11. As a consequence of the application being admitted in terms of Section 9(5) of IBC, 2016, moratorium as envisaged under the provisions of Section 14(1), shall follow in relation to the corporate debtor, prohibiting as per proviso (a) to (d) of the Code. However, during the pendency of the moratorium period, terms of Section 14(2) to 14(4) of the Code shall come in force. 12. A copy of the order shall be communicated to the applicant, Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
