Sudeep Mahendra Shah & Anr vs Cornelian Properties Pvt. Ltd

Sudeep Mahendra Shah & Anr. ...Appellants Versus Cornelian Properties Pvt. Ltd. ...Respondent Present: For Appellant : Mr. Ankur Singhal, Advocate

ORDER

15.10.2019 The Appellant earlier moved before the Adjudication

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

initiation of 'corporate insolvency resolution process' against 'Cornelian

Properties Pvt. Ltd.' which having dismissed, the appellant moved before this

Appellate Tribunal wherein this Appellate Tribunal while disposing of the

appeal, passed order on 13th March, 2019, relevant of which reads as follows:-

"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

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. 2

The appeal stands disposed of with aforesaid

observations. No cost."

2. It appears that thereafter instead of giving Notice under Section 8 (1) of

the 'Insolvency and Bankruptcy Code, 2016' (for short, 'the I&B Code'), the

appellant filed an application under Section 7 of the 'I&B Code' and for the

said reason the Adjudicating Authority dismissed the application under

Section 7 of the 'I&B Code'.

3. As we find that the Appellant has taken a plea that they are the

'Operational Creditors' and on their request liberty was given to the Appellant

to issue a Notice under Section 8(1) of the 'I&B Code' and in accordance with

law they had to file an application under Section 9 of the 'I&B Code', we hold

that it will not be open to the Appellant to file application under Section 7 of

the 'I&B Code'.

4. On merits also, we find that there is no document on record to suggest

that the appellant disbursed any amount for consideration of time value of

money. Earlier plea taken shows issue of cheque dated 10th April, 2014 for

purchase of flat on 31st December, 2013 and supplementary Sale Deed dated

15th September, 2014 which was claimed as 'Operational Debt'. Therefore,

we find no merit to interfere with the impugned order dated 2nd August, 2019.

The appeal is accordingly dismissed.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical) /ns/gc Company Appeal (AT) (Insolvency) No. 1006 of 2019