The central legal point established in the judgment is the requirement for the Adjudicating Authority to ascertain the existence of a default before admitting an application for corporate insolvency resolution process under the Insolvency and Bankruptcy Code, 2016.

Lok Pal Singh, J.

Present petition has been filed seeking the following reliefs:-

(i) To issue a writ, direction or order in the nature of certiorari quashing the impugned order dated 27.10.2017 passed in CP No. (IB) 109/ALD/2017 (Annexure No. 1).

(ii) To issue a writ, direction or order in the nature of prohibition, prohibiting the learned NCLT to not entertain the CP. (IB) No. 109/2017 on merit, the same being defective and not to proceed further and also allow the application for dismissal of CP. (IB) No. 109/2017 and dismiss the CP. (IB) No. 109/2017 pending before the learned NCLT Allahabad.

2. Counter affidavit along with stay vacation application has been filed on behalf of respondent no. 2 Bank. Rejoinder affidavit to the counter affidavit/stay vacation application has also been filed by the petitioner. Subsequent thereto, respondent no. 1 has filed counter affidavit, challenging the maintainability of the writ petition. In the counter affidavit, two annexures have been mentioned but the second annexure has not been annexed. The petitioner has also filed rejoinder affidavit to the counter affidavit of respondent no. 1. In both the rejoinder affidavits plea have been taken that false averments have been made in the counter affidavit filed by Ravindra Kumar on behalf of respondent no. 1 and in the counter affidavit filed by Akhilesh Kumar, Chief Manager, Bank of Baroda, Naveen Mandi Branch, Haldwani.

3. Learned Senior Counsel for the petitioner placed reliance on the provision laid down in the Procedure of the High Court for Uttar Pradesh, Act, 1869, which is also applicable to this High Court and draw attention of this Court to section 4 which is penalty clause and submitted that decision be taken in view of section 4 of the Act against the persons who have filed the false counter affidavit.

4. The writ petition has not been admitted yet and maintainability of the writ petition is to be decided. Though, respondents have said in their counter affidavits that writ petition is not maintainable and sought adjournment to adjourn the hearing of the writ petition for another date, but it would not be proper to adjourn the hearing of the case.

5. In the pre-session, this Court has suggested to the counsel for the parties that since objections have been raised by the petitioner before National Company Law Tribunal (hereinafter referred as NCLT) to the effect that Registrar, NCLT has pointed some defects in the application submitted by the bank but without recordings satisfaction and reason, notice was issued to the petitioner inviting objection.

6. It is submitted by the learned Counsel for the petitioners that NCLT without considering the provision of section 7 of Insolvency and Bankruptcy Code, 2016 issued notice to the petitioner. Section 7 is reproduced hereunder:-

7. Initiation of corporate insolvency resolution process by financial creditor

(1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred.

Explanation.-- For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the corporate debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as may be prescribed.

(3) The financial creditor shall, along with the application furnish-

(a) record of the default recorded with the information utility or such other record or evidence of default as may be specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and

(c) any other information as may be specified by the Board.

(4) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), as