Somi Conveyor Beltings Ltd vs Shailesh Bhandari

Somi Conveyer Belting Ltd. ...Appellant

Versus

Shailesh Bhandari ...Respondent

Present:

For Appellant: Advocate Honey Satpal For Respondent:

ORDER

25.08.2022: Heard Learned Counsel for the Appellant. This Appeal has

been filed against the Order dated 11th July, 2022 by the Corporate Debtor.

By the Impugned Order, the Adjudicating Authority has permitted the

Corporate Debtor to file consolidated reply taking all preliminary objections in

his consolidated reply within seven days. Aggrieved by the said Order, the

Appellant has come in this Appeal.

2. Learned Counsel for the Appellant submits that the preliminary

objection was taken by the Appellant to the Application filed under Section 9

of the Insolvency and Bankruptcy Code, 2016 that it does not fulfil the

threshold of Rs. 1 Crore and it ought to have been rejected. Learned Counsel

for the Appellant submits that the Application by the Operational Creditor was

filed in the month of November, 2019 which was registered thereafter. The

Cont...

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submissions of Learned Counsel for the Appellant is that the Application could

be served on the Corporate Debtor only when the Corporate Debtor appeared

on 08th July, 2021. Learned Counsel for the Appellant submits that the

threshold should be looked into when the Application is complete i.e. only

when service of the Application is made to the Corporate Debtor. She has

referred to the Rule 6 of the Insolvency and Bankruptcy Application to

Adjudicating Authority Rules, 2016. Which deals with Application by

Operational Creditor. Rules 6 as follows:

"6. Application by operational creditor4--

(1) An operational creditor, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under section 9 of the Code in Form 5, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

(2) The applicant under sub-rule (1) shall serve a copy of the application to the registered office of the corporate debtor and to the Board, by registered post or speed post or by hand or by electronic means, before filing with the Adjudicating Authority."

3. We have heard the Learned Counsel for the Appellant.

Company Appeal (AT) (Insolvency) No. 1010/2022 -3-

4. Preliminary Objection which was raised by the Appellant was with

regard to the threshold as prescribed in Section 4 of the Code. By notification

dated 24th March, 2020, the threshold has been increased from Rs. 1 Lakh to

Rs. 1 Crore. Admittedly, the Operational Creditor has filed the application for

an amount of Rs. 32,88,215/- which was less than Rs. 1 Crore. In the present

case, the Application was filed in 2019, as admitted by the Learned Counsel

for the Appellant, we fail to see how the notification dated 24th March, 2020

will be attracted with regard to the threshold. The submission of Learned

Counsel for the Appellant is that date on which the Application is served on

the Corporate Debtor, the threshold should be applied, is clearly unacceptable

argument. We are of the view that there is no substance in the preliminary

objection raised by the Appellant with regard to not fulfilling the threshold.

5. Rule 6 of the 2016 Rules on which reliance is placed by the Counsel for

the Appellant is the provision relating to manner and procedure of filing an

application under Section 9 of the Code. It is well settled that notification dated

24.03.2020 increasing the threshold to Rs. 1 Crores is not applicable in the

application filed prior to 24.03.2020. The application in the present case was

admittedly filed in November, 2019. The filing of an application is well known

concept and the mere fact that the Corporate Debtor received the copy of

application after 24.03.2020 shall not change the date of filing.

6. We further fail to see that how the Appellant can be said to be aggrieved

by the Impugned Order by which the Appellant-Corporate Debtor was allowed

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to file consolidated reply within seven days. Filing of this Appeal is without

any reason.

We dismiss this Appeal.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Mr. Barun Mitra] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No. 1010/2022