JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, J.

The Appellant, allottee of Real Estate, filed an application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (‘I&B Code’ for short) for initiation of ‘Corporate Insolvency Resolution Process’ jointly against 1st and 2nd Respondents- (‘Corporate Debtor’). The Adjudicating Authority (National Company Law Tribunal), New Delhi Bench, New Delhi, rejected the application by impugned order dated 12th March, 2018 on the ground that the application under Section 7 of the ‘I&B Code’ cannot be filed jointly against the two ‘Corporate Debtors’, with following observations :

“9. Submissions made by the Ld. Counsel appearing for Corporate Debtor No.1 merit consideration. The present petition suffers from several infirmities. The payment is alleged to be made to Corporate Debtor No.2 while Insolvency Resolution Process is sought to initiated against Corporate Debtor No.1 and 2. There is no provision under the Code where a petition for Insolvency Resolution Process can be initiated against two Corporate Debtors who have collaborated for a Joint Venture. Even otherwise, it is seen that this petition does not adhere to the format required under the Code. The financial creditor is bound to name the Insolvency Resolution Professional which they have not done in the present petition. This is a clear infirmity of the requirements of Clause 3 of Sub Section 3 of Section 7 of the Code.”

2. The question arises for consideration in this appeal is whether the application under Section 9 is jointly maintainable against 1st and 2nd Respondents (‘Corporate Debtors’) or not?

3. While according to the Appellant, it is maintainable in the facts and circumstances of the case, according to the Respondents, it is not maintainable as no joint petition can be filed against two ‘Corporate Debtors’ and as per Memorandum of Understanding dated 20th June, 2014 relied upon by the Appellant, one of them the ‘Corporate Debtor’ (No.1) is not a party.

4. For determination of the issue, it is desirable to notice the relevant fact as discussed below :

5. ‘AMB Infrabuild Pvt. Ltd.’-(1st Respondent), a Company registered under the Companies Act, 1956 and ‘Earth Galleria Pvt. Ltd.’-(2nd Respondent), another Company registered under the Companies Act, 1956, entered into ‘Collaboration Agreement’ on 3rd May, 2013, for development of a piece of land as mentioned therein, ‘AMB Infrabuild Pvt. Ltd.’-(1st Respondent) herein called as ‘Owner’ of the land and Earth Galleria Pvt. Ltd.’-(2nd Respondent) as ‘Developer’, relevant portion of which reads as follows:

“COLLABORATION AGREEMENT

THIS AGREEMENT OF COLLABORATION is executed at Gurgaon on this 03rd day of May, 2013

BETWEEN

AMB Infrabuild Pvt. Ltd., having its office at D-62, Defence Colony, Ground Floor, New Delhi through its Director Mr. Manoj Sethi duly empowered to enter into and execute this agreement vide resolution dated 30-04-2013 passed by Board of Directors of the said company (hereinafter called the “OWNER” which expression unless repugnant or opposed to the context thereof includes its successors, representatives, nominees and permitted assigns etc.) the party of the FIRST PART.

AND

Earth Galleria Private Limited., a company incorporated under the Companies Act, 1956 having its office at 26, First Floor, Pusa Road, New Delhi-110005 though its Director Shri Avdesh Kumar Goel who has been empowered to execute this agreement vide Board Resolution dated 23-03-2013 (hereinafter called the “DEVELOPER” which expression unless repugnant or opposed in the context thereof includes its successors, representatives, nominees and permitted assigns etc.) the party of the SECOND PART. Both the OWNER and the DEVELOPER are collectively referred to as the “Parties” and individually referred to as the “Party”.

xxx xxx xxx

AND WHEREAS the DEVELOPER after due diligence and verifying the Documents/ revenue records including the above letter of intent dated 01.12.2012. The owner has transfer their right