Sudeep Mahendra Shah & Anr vs Cornelian Properties Pvt Ltd

Sudeep Mahendra Shah & Anr. ...Appellants

Vs.

Cornelian Properties Pvt. Ltd. ...Respondent

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

For Respondent: -None.

O R D E R

13.03.2019─ Learned counsel for the Appellant submits that the

Company Petition does not relate to the claim amount. Some of the

Company Petitions are under Sections 397, 398 & 402 of the Companies

Act, 1956/ Section 241 & 242 of the Companies Act, 2013. The other

application under Section 433 (e) read with Section 434 of the Companies

Act, 1956 was transferred in which the impugned order was passed and

was treated as an application under Section 9 of the 'I&B Code' and has

been rejected by the impugned order dated 9th January, 2019 on wrong

presumption that there is a pre-existence dispute.

2. Admittedly, after transfer of the case before the Adjudicating

Authority, the Appellant had not issued any demand notice under Section

8(1) of the 'I&B Code'. No such notice was enclosed with the petition and

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

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therefore, the application under Section 9 was not maintainable as per

Rule 5 of the "Transfer of pending proceedings of winding up on the ground

of inability to pay debts", which reads as follows: -

"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

Company Appeal (AT) (Insolvency) No. 156 of 2019 -3-

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.

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. In fact, transfer application under Section 433(e) and Section 434

stood abated as per the aforesaid Rule 5.

4. In the circumstances, while we are not inclined to interfere with the

impugned order dated 9th January, 2019, give liberty to the Appellant to

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issue demand notice under Section 8(1) on the Respondent and thereafter

to take appropriate step in accordance with law. In case, after issuance

of demand notice any application under Section 9 is filed, the

Adjudicating Authority will decide the same uninfluenced by the

impugned order dated 9th January, 2019 as we have not decided the

question of pre-existence of dispute in this appeal.

The appeal stands disposed of with aforesaid observations. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial) Ar/g

Company Appeal (AT) (Insolvency) No. 156 of 2019