Pushti Impex vs Shree Satyanarayan Industrial ...

(Arising out of Order dated 25th May, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Mumbai in TCP No. 532/IBC/NCLT/MB/MAH/2017)

IN THE MATTER OF:

Pushti Impex ...Appellant

Vs.

Shree Satyanarayan Industrial Suppliers Private Limited ...Respondent

Present: For Appellant:- Mr. Ankur Singhal, Advocate.

For Respondent:- Mr. S.S. Karkera, Advocate

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant- 'M/s. Pushti Impex'- ('Operational Creditor') filed a

winding-up petition before the Hon'ble Bombay High Court under Section

433(e) of the Companies Act, 1956 on 14th December, 2016, which was

subsequently transferred to National Company Law Tribunal ("Tribunal"

for short), Mumbai Bench, Mumbai, pursuant to "The Companies

(Transfer of Pending Proceedings) Rules, 2016".

2. Rule 5 relates to transfer of pending proceedings of winding up on

the ground of inability to pay debts which are to be transferred from the

Hon'ble High Court's to the respective Tribunal and reads as follows: - 2

"5. Transfer of pending proceedings of Winding

up on the ground of inability to pay debts.- (1) All

petitions relating to winding up under clause (e)

of section 433 of the Act on the ground of inability

to pay its debts pending before a High Court, and

where the petition has not been served on the

respondent as required under rule 26 of the

Companies (Court) Rules, 1959 shall be

transferred to the Bench of the Tribunal

established under sub-section (4) of section 419

of the Act, exercising territorial jurisdiction and

such petitions shall be treated as applications

under sections 7, 8 or 9 of the Code, as the case

may be, and dealt with in accordance with Part

II of the Code:

Provided that the petitioner shall submit all

information, other than information forming part

of the records transferred in accordance with

Rule 7, required for admission of the petition

under sections 7, 8 or 9 of the Code, as the case

may be, including details of the proposed

insolvency professional to the Tribunal within

sixty days from date of this notification, failing

which the petition shall abate.

Company Appeal (AT) (Insolvency) No. 435 of 2018 3

2. All cases where opinion has been

forwarded by Board for Industrial and Financial

Reconstruction, for winding up of a company to a

High Court and where no appeal is pending, the

proceedings for winding up initiated under the

Act, pursuant to section 20 of the Sick Industrial

Companies (Special Provisions) Act, 1985 shall

continue to be dealt with by such High Court in

accordance with the provisions of the Act."

3. As per Rule 5, the Appellant- ('Operational Creditor') furnished

Form-5 under Rule 6 of the Insolvency and Bankruptcy (Application to

Adjudicating Authority) Rules, 2016 for invoking the provisions of Section

9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short)

against the 'Corporate Debtor'.

4. The Adjudicating Authority (National Company Law Tribunal),

Mumbai Bench, Mumbai, rejected the application by impugned order

dated 25th May, 2018 on the ground of 'pre-existence of dispute'.

5. Learned counsel for the Appellant submitted that there is no

pre-existing dispute. However, it has not been disputed that Form-5

under Rule 6 of the Insolvency and Bankruptcy (Application to

Adjudicating Authority) Rules, 2016 was filed on 17th July, 2017 without

issuance of any Demand Notice under Section 8(1) of the 'I&B Code' to

Company Appeal (AT) (Insolvency) No. 435 of 2018 4

the 'Corporate Debtor'- ('M/s. Shree Satyanarayan Industrial Suppliers

Private Limited').

6. As per proviso to Rule 5(1), the Appellant was required to submit

all the information for admission of petition under Section 9 including

the information relating to Demand Notice under Section 8(1).

Admittedly, such Demand Notice under Section 8(1) was not issued.

Therefore, we hold that the application under Section 9 in Form-5 was

not maintainable.

7. In view of the aforesaid finding, it is not necessary to decide the

question as to whether there is pre-existence of dispute or not. As per

Rule 5 aforesaid, the Appellant having failed to provide information

relating to Section 8, the transfer petition stood abated.

8. We find no merit in this appeal. It is accordingly dismissed.

However, in the facts and circumstances of the case, there shall be no

order as to cost.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial)

NEW DELHI 30th January, 2019 AR

Company Appeal (AT) (Insolvency) No. 435 of 2018