K B Board Mills Llp vs Jainam Exports Pvt. Ltd. (Shree Jainam ...
- CitationCOMPANY APPEAL (AT)(Ins) no.1232 of 2024
Ratio decidendi
The rule this decision rests on
The Appellate Tribunal sets aside an order dismissing an operational creditor's Section 9 petition for non-compliance with the affidavit requirement under Section 9(3)(b) of the Insolvency and Bankruptcy Code, where the affidavit is shown on the record to have been filed earlier, and holds that the Adjudicating Authority must first determine whether the compliance affidavit was in fact filed on record before the direction of the earlier order; if it was, the petition is to be proceeded with as per law, and if it was not, the Adjudicating Authority is free to take action against the petitioner for making a false statement.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI COMPANY APPEAL (AT)(Ins) no.1232 of 2024 In the matter of: KB Board Mills LLP Appellant Vs Jainam Exports Pvt Ltd Respondent For Appellant:Mr. Amit Agarwal, Advocate. For Respondent:Ms Nalini, Advocate. ORDER
HYBRID MODE 14.07.2025: This appeal is against the impugned order dated 08.04.2024
whereby Company Petition CP(IB)No.1851/MB/2019 filed under Section 9 of the
IBC for initiating the CIRP against the Corporate Debtor was dismissed on the
ground the operational creditor did not file an affidavit of compliance under
Section 9(3)(b) of IBC.
2. It is the submission of the learned counsel for the appellant that vide order
dated 02.01.2024 the applicant was granted an opportunity to cure the defect,
to file and place on record affidavit under Section 9(3)(b) and also to serve it upon
the Corporate Debtor, but since it was not on record the company petition filed
by the appellant herein was dismissed as not maintainable. It is the submission
of the learned counsel for the appellant the said compliance affidavit under
Section 9(3)(b) of the Code was very much on record and was filed in the year
2019 but inadvertently he was not able to disclose the same or could brought it 2
to the notice of Ld. NCLT due to his inadvertence and since it was already filed
hence there was no occasion to dismiss the appeal for want of such affidavit.
3. We have perused appeal and we find such affidavit at Page 109 of the
appeal paper book. The affidavit is dated 24.04.2019.
4. In the circumstances, we set aside the impugned order of the Ld. NCLT
and direct the Ld. NCLT to examine again as to if such compliance affidavit dated
24.04.2019 was filed on record in the year 2019 as alleged by the appellant
herein. In case it is found to be filed in the year 2019 or prior to direction given
on 02.01.2024, the Ld NCLT may proceed as per law; but in case it comes to the
conclusion such affidavit was not filed prior to order dated 02.01.2024, the Ld
NCLT shall be free to take steps against the appellant herein for making false
statement.
5. The appeal is disposed of in terms of above.
6. Pending applications, if any, are also disposed of.
(Justice Yogesh Khanna) Member (Judicial)
(Mr. Indevar Pandey) Member (Technical) Bm/md
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