Pck Buderus (India) Special Steel Pvt. ... vs Sungil India Pvt. Ltd

PCK Buderus (India) Special Steel Pvt. Ltd. ...Appellant

Versus

Sungil India Pvt. Ltd. ...Respondent

Present:

For Appellant : Mr. Prashant Shukla, Advocate

ORDER

17.05.2018 This appeal has been listed on remand by the Hon'ble

Supreme Court in view of the decision of the Hon'ble Apex Court in "Macquarie

Bank Limited v. Shilpi Cable Technologies Limited" - (2018) 2 SCC 674".

2. The appellant preferred an application before the National Company Law

Tribunal, New Delhi (hereinafter referred to as the 'Adjudicating Authority')

under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as the 'I&B Code') for triggering the 'corporate insolvency process'

against the respondent - 'Corporate Debtor' on the ground of default of payment

Rs.39,86,530/-. It was registered as (IB) 399(ND)/2017. The Adjudicating

Authority noticed that the demand notice issued by the 'Operational Creditor'

under Section 8(1) of the I & B Code was by an advocate and referring the

decision of this Appellate Tribunal in "Macquaarie Bank Ltd. vs. Uttam Galva

Mettalics Limited" in "Company Appeal (AT)(Insolvency) No. 96 of 2017 dismissed 1 Company Appeal (AT) (Insolvency) No. 311 of 2017 the application on the ground that the notice under Section 8(1) was issued by

an advocate. The said order was affirmed by this Appellate Tribunal.

3. The appellant thereafter moved before the Hon'ble Supreme Court against

the order this Tribunal. The Hon'ble Supreme Court's decision in 'Macquarie

Bank Limited vs. Shilpi Cable Technologies Ltd.' which was analogous with

appeal of the appellant held and observed as follows:

"49. Since there is no clear disharmony between the two

parliamentary statutes in the present case which

cannot be resolved by harmonious interpretation, it is

clear that both statutes must be read together. Also,

we must not forget that Section 30 of the Advocates Act

deals with the fundamental right under Article 19(1)(g)

of the Constitution to practise one's profession.

Therefore, a conjoint reading of Section 30 of the

Advocates Act and Sections 8 and 9 of the Code

together with the Adjudicatory Authority Rules and

Forms thereunder would yield the result that a notice

sent on behalf of an operational creditor by a lawyer

would be in order."

4. After remand from the Hon'ble Supreme Court, though notices were issued

to the respondent but it has not appeared in spite of service of notice by Speed

Post.

2 Company Appeal (AT) (Insolvency) No. 311 of 2017

5. In view of decision of the Hon'ble Supreme Court in the case of "Macquarie

Bank Limited (Supra), we set aside the order passed in (IB) 399(ND)/2017 and

remit the case back to Adjudicating Authority, New Delhi Bench to hear the case

after notice to the parties. If the application is complete, the Adjudicating

Authority will admit the appeal and in case of any defect, the Adjudicating

Authority will grant appropriate time to the appellant. It will be open to the

respondent to settle the claim in the meantime. The appeal is allowed with the

aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk

3 Company Appeal (AT) (Insolvency) No. 311 of 2017