JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, Chairperson

The Respondents - both of whom claim to be Operational Creditor (s) filed a joint application under Section 9 of the Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as I&B Code) for initiation of corporate insolvency resolution process against Appellant - Corporate Debtor. By impugned order dated 10th April, 2017, Learned Adjudicating Authority (National Company Law Tribunal) Mumbai Bench while rejected the objection as were raised by the Appellant, admitted the application and directed to refer the matter to the Insolvency & Bankruptcy Board of India to recommend name of Interim Resolution Professional for his appointment.

2. Ld. Counsel for the Appellant - Corporate Debtor challenged the impugned order on different count. It was submitted that there is a pre-existing bonafide dispute between the parties and therefore, the insolvency application under Section 9 of the I&B Code is not maintainable. In support of aforesaid submission, it was contended that:—

(i) there is no privity of contract with the Respondents;

(ii) Respondents violated the contractual terms;

(iii) Appellant disputed execution of contract;

(iv) There is dispute about quantum of default;

(v) There is a dispute as to who is the defaulter (whether the default can at all be attributed to Uttam Steels in view of actual liability being that of a 3rd party);

(vi) There is a dispute as to whether the Respondents are Operational Creditors of the Appellant etc.

3. It was pointed out that the Respondents had issued a winding up notice on 8th December 2016 much prior to the issuance of so called notice under Section 8 of the I&B Code. Pursuant to which, the Appellant disputed the claim by a detailed reply dated 3rd January 2017. Apart from that, the Respondents are relying on a document dated 27th December 2013 to fix liability on the Appellant, which has not been signed by Appellant and was brought to the notice of the Respondents in the year 2013 itself.

4. The Ld. Counsel for the Appellant referred to an e-mail dated 10.4.2014 forwarded by one of the Respondent to demonstrate existence of bonafide dispute between the parties and submitted that in view of bonafide pre-existing dispute, in terms of sub-Section (6) of Section 5 of the I&B Code, the joint insolvency application is not maintainable.

5. It was further pointed out that the notice under Section 8 of I&B Code dated 28.2.17 was issued jointly by two Respondents, both of whom claimed to be ‘Operational Creditors’ but not by Respondents themselves but through their Advocate, Ms Sonu Tandon. According to Appellant the joint petition under Section 9 by two separate Operational Creditors is not permissible and Demand Notice under Section 8 in Form-3 or Form-4 of Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as Adjudicating Authority Rules) was not issued by the ‘authorised persons’ in accordance with law.

6. It was further submitted that the certificate of ‘financial institution’ as prescribed and mandatory under clause (c) of sub-Section (3) of Section 9 of the I&B Code was not filed by Respondents in support of their claim that there is no payment of the unpaid operational debt. Further, according to Appellant, the bank certificate dated 6th March 2017 submitted by Respondents is defective on multiple counts as it was not issued by a notified “financial institution”, but has been issued by ‘Misr Bank’ which is not recognised as a “financial institution” in India as per sub-section (14) of Section 3 read with clause (c) of sub-section (3) of Section 9 of the I&B Code. It was further contended that the affidavit in the insolvency application was also defective and incomplete. According to the Ld. Counsel for the Appellant, the affidavit in support of insolvency application should have been filed, as presc