Swiss Promotion Private Limited vs Manufacture Et Fabrique De Montres Et ...

Swiss Promotion Pvt. Ltd. ...Appellant

Versus

Manufacture ET Fabriquen DE Montres ET Chronometres Ulysse Nardin LE Locle S.A. ...Respondent

Present: For Appellant: Ms. Rashmi Chopra, Ms. Bhawna Khanna and Ms. Vatsala C. Chaturvedi, Advocates. For Respondent:

ORDER

09.09.2022: This Appeal has been filed against the order dated

25.08.2022 passed by the Adjudicating Authority (National Company Law

Tribunal), New Delhi, Court-V by which order the objection raised on behalf

of the Corporate Debtor regarding authorisation of the affidavit by the

Operational Creditor has been rejected and the Adjudicating Authority has

directed the matter to be fixed on 08.09.2022 for arguments.

2. Learned counsel for the Appellant submits that in the present case, the

affidavit which was in support of the Section 9 Application was sworn on

15.03.2021 and the application under Section 9 came to be filed on

18.08.2021. It is submitted that the affidavit could not be said to be a proper

affidavit in compliance to Section 9(3)(b) of the I&B Code, hence, the

Cont'd.../ 2

Adjudicating Authority ought to have directed the Operational Creditor to cure

defects and thereafter fix the matter for hearing on Section 9 application.

3. We have considered the submissions of learned counsel for the

Appellant and perused the record.

4. Section 9 provides for filing of an application for initiation of Corporate

Insolvency Resolution Process by an Operational Creditor. Section 9 Sub-

section (3) require the Operational Creditor to file certain materials alongwith

the application. In the present case, we are concerned with Section 9 (3) (b),

which is to the following effect:

"9 (3) The operational creditor shall, along with the application furnish -

(b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt"

5. When we look into the provision of Section 9 (3) (b), an affidavit is

required to be filed to the effect that there is no notice given by the corporate

debtor relating to a dispute of the unpaid operational debt. Affidavit is only

on limited aspect as contained in Section 9 (3) (b). In the present case,

affidavit has been sworn by the Operational Creditor at Switzerland on

15.03.2021 and thereafter affidavit was part of the Section 9 application,

which was filed on 18.08.2021. The affidavit makes averments as

contemplated in Section 9 (3) (b), which duly complies with the requirements

as in Section 9 (3) (b). The mere fact that the affidavit was sworn at an earlier

Company Appeal (AT) (Insolvency) No. 1102 of 2022 3

point of time and application was filed on 18.08.2021 does not make the

affidavit incompetent to be looked into.

6. The learned counsel for the Appellant further submits that the affidavit

verifies the contents of the application as has been referred to in Para 2 of the

General Affidavit Verification Petition. The verification of petition is a

requirement which is to be read alongwith Section 9(2) of I&B Code read with

NCLT Rules, 2016 as well as the Adjudicating Authority Rules, 2016.

Verification of affidavit is for entirely different purpose. More so, the

Adjudicating Authority has already fixed the matter on 08.09.2022 for hearing

arguments on Section 9 application. Learned counsel for the Appellant

submits that the allegations in the affidavit are incorrect. These are the

questions which may be considered and decided by the Adjudicating

Authority at the time of hearing of the application. We are of the view that

the objection raised by the Appellant regarding the affidavit has rightly been

rejected by the Adjudicating Authority. We see no merit in the Appeal. Appeal

is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 1102 of 2022