Kkalpana Industries (India) Limited vs Atharva Poly-Plast Private Limited
- CitationCompany Appeal (AT) (Insolvency) No. 761 of 2022
Ratio decidendi
The rule this decision rests on
The Adjudicating Authority's rejection of an application under Section 9 as non-maintainable was correct where the claim is below the statutory threshold of Rs. 1 crore prescribed for initiation of corporate insolvency resolution process by an operational creditor, the application having been filed on the date on which it was rejected and not on the earlier date claimed by the appellant. An applicant who asserts that an earlier application was filed but has become untraceable bears the responsibility of taking steps to have that earlier application placed on record; absent such steps, the later-filed application is the one to be assessed for maintainability, and the Appellate Tribunal will not treat the earlier filing as established.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
KKalpna Industries (India) Ltd. ...Appellant
Versus
Atharva Poly-Plast Pvt. Ltd. ...Respondent
Present: For Appellant: Mr. Rohit Bohra, Advocate.
For Respondent:
ORDER
(Virtual Mode)
15.07.2022: This Appeal has been filed against the order dated
28.04.2022 by which order the Adjudicating Authority (National Company
Law Tribunal), Mumbai Bench, Court-IV has rejected the Application of the
Appellant as non-maintainable observing that it does not meet the minimum
criterial of Rs.1 Crore whereas the application has been filed on 23.04.2022.
2. Learned counsel for the Appellant submits that in fact the Application
was filed by the Appellant under Section 9 on 17.02.2020 and again was filed
physically on 19.02.2020 but since the application was untraceable, fresh
application was filed on 23.04.2022.
3. We have perused the application filed by the Appellant. Learned
counsel for the Appellant submitted that in fact the counsel appearing for the
Appellant before Adjudicating Authority filed the same application which was
filed on 17.02.2020 again on 23.04.2022, which petition came for
Cont'd.../ 2
consideration of the Adjudicating Authority and has been rejected. The
Adjudicating Authority has passed the order in C.P.(IB)/530/2022 which
application was admittedly filed on 23.04.2022. Hence, there is no error in
the order of the Adjudicating Authority rejecting the Application since the
amount claimed in the petition was Rs.6.5 Lakhs.
4. As far as the submission of the Appellant that earlier application was
filed which became untraceable, it was open for the Appellant to take steps
for taking the said application on board, which was not done.
5. We are of the view that order as passed by the Adjudicating Authority
rejecting the Application does not suffer from any error. However, we observe
that it is always open to the Appellant to take such measure as available in
law to recover the amount of Rs.6.5 Lakhs as claimed by the Appellant. The
appeal is dismissed with the above observations.
[Justice Ashok Bhushan] Chairperson
[Justice M. Satyanarayana Murthy] Member (Judicial)
[Barun Mitra] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No. 761 of 2022
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