M/S Aggcon International Equipments ... vs Isolux Corsan India Engineering And ...
- CitationCompany Appeal (AT)(Insolvency) No. 151 of 2017
Ratio decidendi
The rule this decision rests on
An application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of corporate insolvency resolution process is not maintainable against a company where the operational creditor's claim arises under a contract with a joint venture firm that is not a party to the application and is not itself a company incorporated under the Companies Act, 1956 or 2013; the claim must be made against the entity that is actually the contracting party and debtor.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
M/s Aggcon International Equipments Pvt. Ltd. .. Appellant
Versus
Isolux Corsan India Engineering and Construction Pvt. Ltd. .. Respondent
Present:
For Appellant: Shri Saurabh Seth and Ms. Sumeera Seth, Advocates.
For Respondent: Shri Vineet Tayal, Advocate
ORDER
22.11.2017 The Appellant - 'Operation Creditor' has filed an
application under Section 9 of the Insolvency & Bankruptcy Code 2016
(hereinafter referred to as 'I&B Code') for initiation of Corporate Insolvency
Resolution Process against Respondent- M/s Isolux Corsan India Engineering
and Construction Pvt. Ltd. The Adjudicating Authority (National Company
Law Tribunal) Chandigarh Bench, Chandigarh by impugned order dated 21st
July, 2017 in CP(IB) No. 33/Chd/Hry/2017 noticed that the actual claim of
the Appellant is against one 'Isolux Corsan India- C&C "JV" and not against
the Respondent which is joint venture firm and the firm not being a party in
the application under Section 9 of 'I&B Code', the application was dismissed.
2. That on 9th November, 2017 when the matter was taken up, the
following submission was recorded: -
"Learned Counsel for the Appellant who also accepts that "Isolux
Corsand India-C&C 'JV', District Kaimur, Bhar is not a company
incorporated under the Companies Act, 1956 or 2013."
3. Having heard the learned Counsel for the parties and in view of the fact
that the agreement between the Appellant was not with the Respondent-
'Isolux Corsan India Engineering Construction Pvt. Ltd.' but with a joint
venture firm namely 'Isolux Corsan India- C&C "JV", we hold that the
application under Section 9 of the I&B Code against the Respondent- 'Isolux
Corsan India Engineering Construction Pvt. Ltd.' is not maintainable.
4. For the reasons stated above, no interference is called for in the
impugned order. In absence of any merit the appeal, is dismissed. No cost.
[Justice S.J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial)
/akc/
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