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TMI Blog2024 (9) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... inable on this ground alone. The judgment of this Tribunal relied by the learned Counsel for the Appellant in TEK TRAVELS PRIVATE LIMITED VERSUS ALTIUS TRAVELS PRIVATE LIMITED [ 2021 (4) TMI 813 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , NEW DELHI ] fully support the submissions of learned Counsel for the Appellant, where this Tribunal has held that before rejection of an Application on the ground of defect, the Adjudicating Authority ought to have provided an opportunity to rectify the defects within seven days. The order dated 02.01.2024 is set aside - Section 9 Application filed by the Appellant before the Adjudicating Authority is revived - appeal disposed off. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Manish Kumar Shekhari, Ms. Anisha Mahajan, Mr. Ashish Khatri and Ms. Sanjana Shrivastava , Advocates For the Respondent : Mr. Amit Sibal along with Ms. Adrija Mishra, Mr. Ankit and Mr. Harsh Kaushik , Advocates JUDGMENT ASHOK BHUSHAN , J. This Appeal by Operational Creditor has been filed challenging order dated 02.01.2024 passed by National Company Law Tribunal, Ahmedabad, Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and materials and the Adjudicating Authority has not dismissed the Application on merits. The learned Counsel for the Appellant has relied on judgment of this Tribunal in Tek Travels Private Ltd. vs. Altius Travels Private Ltd. Company Appeal (AT) (Ins.) No.172 of 2020, where this Tribunal has held that before rejection of an Application on the ground of defect, the Adjudicating Authority ought to have provided an opportunity to rectify the defects within seven days. 6. Shri Amit Sibal, learned Senior Counsel appearing for the Respondent refuting the submissions of learned Counsel for the Appellant submits that Adjudicating Authority has rightly dismissed the Application. In the Application there was no proper explanation on the date of invoice; no proper explanation was given on the date of default; no proper explanation was given on the limitation period to ascertain the due date; invoices had not been segregated and had been raised on two different entities. It is submitted that it is not the case of the Appellant that Application was defective, hence the Appellants are not entitled for any opportunity to clear the defects, if any. It is submitted that opportunity at this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under subclause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority. 10. In the present case, Application under Section 9 has been rejected by the Adjudicating Authority, we need to notice relevant provisions of Section 9, sub-section (5) (ii). When we look into the impugned order, observation made by the Adjudicating Authority is There was no proper explanation given on the date of invoice, default and limitation period to ascertain the due date . It was also observed that invoices were raised on two different entities and not segregated. The Adjudicating Authority by the impugned order, dismissed the Application as defective. It is relevant to notice that proviso to Section 9, subsection (5) (ii) uses the expression shall before rejecting an Application, under sub-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being defective, having not been gone into by the Adjudicating Authority, nor any finding returned that Demand Notice is defective and is not in accordance with provisions of the IBC, we see no occasion to enter into the said issue. 12. Learned Counsel for the Respondent has placed reliance on judgment of this Tribunal in Ramco Systems Ltd. (supra). In the above case, Application was rejected by the Adjudicating Authority on the ground of inconsistency in the overall payments and the non-compliance with the provisions of Section 9(3)(c) of the IBC. Section 9(3)(c) of the provides as follows: 9(3)(c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt 1 [by the corporate debtor, if available; 13. The facts in order of the Adjudicating Authority have been noticed in paragraph 1 in the judgment of the Ramco Systems Ltd., which are as follows: 1. The Appellant- Ramco Systems Limited - ( Operational Creditor ) filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) against the Spicejet Limited - ( Corporate Debtor ). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor is always at liberty to disapprove the statement as contained in the information utility record. 16. There can be no quarrel to the proposition laid down by this Tribunal in the above case. However, the order impugned does not indicate that Adjudicating Authority has adverted to the certificate issued by the financial institutions. Hence, the said judgment has no application in the present case. 17. The learned Counsel for the Respondent has also relied on judgment of the Hon ble Supreme Court in Swiss Ribbons Pvt. Ltd. Anr. Vs. Union of India Ors. (2019) 4 SCC 17, where Hon ble Supreme Court has laid down following: 87. The aforesaid Regulations also make it clear that apart from the stringent requirements as to registration of such utility, the moment information of default is received, such information has to be communicated to all parties and sureties to the debt. Apart from this, the utility is to expeditiously undertake the process of authentication and verification of information, which will include authentication and verification from the debtor who has defaulted. This being the case, coupled with the fact that such evidence, as has been conceded by the learned Attorn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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