Satyaprakash Aggarwal & Ors vs Vistar Metal Industries Pvt. Ltd

Mr. Satyaprakash Aggarwal & Ors. ...Appellants

Vs.

Vistar Metal Industries Pvt. Ltd. ...Respondent

Present: For Appellants: - Mr. Shyam Babu, Advocate.

For Respondent:- Mr. Sandeep S. Ladda, Mr. Soumik Ghosal, Mr. Devender Singh and Mr. Gaurav Singh, Advocates.

ORDER

21.05.2018- This appeal has been preferred by the Appellants against

an order dated 15th February, 2018 passed by the Adjudicating

Authority (National Company Law Tribunal), Mumbai Bench, Mumbai

in C.P. No. 1331/I&BP/2017. By the impugned order, the joint

application has been preferred by the Appellants ('Financial Creditors')

under Section 7 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as "I&B Code") has been rejected on the ground

that the tabular chart reveals that the 'dates of default' are not

specifically mentioned. It has been observed that the debt due as on

15th December, 2015, 15th March, 2017 and 15th May, 2017 in respect

of three claims of the 'Financial Creditors' has been mentioned therein.

Contd/-..............

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It is informed that out of the three dates, there is a typographical error,

which could have been corrected if allowed time.

2. Notice was issued to the Respondent. They have appeared but not

filed any reply affidavit denying the averment made in the Form 1 or the

appeal.

3. Admittedly, we find that on the technical ground i.e. the

application is defective, the Adjudicating Authority has rejected the

application under Section 7 of the 'I&B Code'. Therefore, we cannot

appreciate the impugned order, as before rejecting the application the

Adjudicating Authority was required to give an opportunity to the

Appellant to rectify the defect.

4. Further, in a petition under Section 7 of the 'I&B Code', the

Adjudicating Authority is required to decide whether the Form 1 along

with documents is complete or not. The Adjudicating Authority is not

required to decide as to what is the actual amount of claim and other

details, which is required to be determined by the 'Resolution

Professional' after initiation of 'Corporate Insolvency Resolution

Process'.

5. For the reasons aforesaid, we set aside the impugned order dated

15th February, 2018 and remit the case to the Adjudicating Authority to

Company Appeal (AT) (Insolvency) No. 136 of 2018 -3-

find out whether the application in Form 1 is complete or not after notice

to the parties and hearing the parties. If there is any defect, the

Adjudicating Authority will allow time to the Appellant to remove the

defects. In the meantime, it will be also open to the Respondent-

'Corporate Debtor' to settle the claim with the 'Financial Creditor'.

6. The appeal stands disposed of with aforesaid observations and

directions. No Cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/g

Company Appeal (AT) (Insolvency) No. 136 of 2018