2024 Supreme(Online)(NCLT) 107
NATIONAL COMPANY LAW TRIBUNAL
TORRECID INDIA PRIVATE LIMITED – Appellant
Versus
CAPSON TILES PRIVATE LIMITED – Respondent
C.P. (IB) - 281/2023
Advocates:
For the Petitioner:KAMLESH VAIDANKAR
For the Respondent:Arjun Padhiyar
Defects in a petition under the Insolvency and Bankruptcy Code, particularly regarding affidavit dates, are fatal and cannot be rectified, leading to rejection.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 9 - Application for initiation of Corporate Insolvency Resolution Process (CIRP) - The applicant filed a petition for CIRP against the respondent for defaulting on operational debt of Rs.1,15,06,632/- - The petition was found defective due to discrepancies in dates of affidavits and was rejected - The court emphasized that defects in the petition are fatal and cannot be rectified. (Paras 1-12)
(B) Procedural Compliance - The court noted that the applicant failed to rectify defects in the initial petition despite opportunities provided, leading to its rejection. (Paras 7-11)
Facts of the case:
The applicant filed a petition under Section 9 of the IBC for CIRP against the respondent for non-payment of operational debt. The petition was initially filed on 01.09.2023 but was returned due to defects. A subsequent petition was filed on 03.11.2023, which was deemed defective due to prior dates on affidavits.
Findings of Court:
The court found the petition defective and rejected it, stating that the defects were fatal and could not be rectified.
Issues: The main issues included the validity of the petition due to discrepancies in affidavit dates and the implications of these defects on the petition's acceptance.
Ratio Decidendi: The court ruled that defects in the petition, particularly concerning affidavit dates, are fatal and cannot be remedied, leading to the rejection of the application.
Result: The application is rejected as defective.
ORDER(Hybrid Mode) The case is fixed for pronouncement of the order. The order is pronounced in the open court, vide separate sheet.
-Sd- -Sd- SAMEER KAKAR SHAMMI KHAN MEMBER (TECHNICAL) MEMBER (JUDICIAL) IN THE NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD DIVISION BENCH COURT - 1 ITEM No.304 C.P.(IB)/281(AHM)2023 Proceedings under Section 9 IBC IN THE MATTER OF:
Torrecid India Private Limited V/s Capson Tiles Private Limited ........Applicant ........Respondent Order delivered on: 05/07/2024 Coram:
Mr. Shammi Khan, Hon’ble Member(J) Mr. Sameer Kakar, Hon’ble Member(T) CP CP (IB) No.281/AHM/2023 BEFORE THE ADJUDICATING AUTHORITY NATIONAL COMPANY LAW TRIBUNAL AHMEDABAD BENCH COURT-I CP (IB) No.281/AHM/2023 (An application under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016) In the Matter of:
TORRECID INDIA PVT. LTD. (CIN: U26915GJ2010FTC104703) Registered office at Plot No. 29, 30 and 31, GIDC, Savvli, Alindra, Ta. Savli, Dist. Vadodara, Gujarat-391775. …Applicant/Operational Creditor VERSUS CAPSON TILES PVT. LTD. (CIN: U26933GJ2007PTC052201) Registered office at Survey No. 86, Ta. Morbi Na Juna Jambudiya, Gujarat- 363642 …Respondent/Corporate Debtor Order Pronounced On: 05.07.2024 CP (IB) No.281/AHM/2023 CORAM:
SH. SHAMMI KHAN, HON’BLE MEMBER (JUDICIAL) SH. SAMEER KAKAR, HON’BLE MEMBER (TECHNICAL) APPEARANCE:
For the Applicant : Dr. Kamlesh Vaidankar, Advocate For the Respondent : Mr. Arjun Padhiyar, Advocate O R D E R 1. The Present Application is filed on 3.11.2023 was filed through E-Mode and physical copy was filed on 07.11.2023 vide inward diary No. 1980 by the Applicant M/s. Torrecid India Pvt. Limited (hereinafter referred to as “Operational Creditor”) against the Respondent M/s. Capson Tiles Private Limited (hereinafter referred to as “Corporate Debtor”) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “IBC, 2016”) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as “IB (APPLICANT) Rules, 2016”) for initiation of Corporate Insolvency Resolution Process (CIRP), to appoint Interim Resolution Professional (hereinafter referred to as “IRP”)
and declare the moratorium for having defaulted CP (IB) No.281/AHM/2023 payment of the operational debt of Rs.1,15,06,632/- including interest. The date of default is stated to be 27.01.2023 to 19.03.2023 for the invoices raised from 19.10.2022 to 09.12.2022.
2. After issuance of the notice in the matter, the Respondent appeared through its Counsel and filed reply on 28.02.2024 vide inward diary No. D-1647 to which the Applicant has also filed rejoinder on 17.05.2024 vide inward diary No. 2127. 3. On 24.06.2024 the matter was taken up for hearing and during the course of hearing the following one of the defense was taken by the Ld. Counsel for the Respondent which is recorded as under:-
“During the course of hearing, one of the defence taken by the Respondent is that the date of the petition is dated 11.10.2023 whereas the affidavit in support is a prior date 27.07.2023. Further affidavit annexed in support of the documents is also dated 18.08.2023 which is also prior to the date of the petition.
In rebuttal the counsel for the applicant submitted that he has initially filed the petition on 05.09.2023. However, due CP (IB) No.281/AHM/2023 to the certain objection raised by the Registry he had to file a fresh petition due to which this discrepancy has occurred.
Let the details of the filing inward no. be provided to the Registry and Registry to place on records the previous filed petition to ascertain the correctness of the submissions.”
4. In compliance of order dated 24.06.2024 Registry of the Tribunal has submitted its report by way of Note dated 02.07.2024 which is reproduced herein:-.
1. “Company Petition (IB) bearing e-filing No.2401105/01586/2023 was e-filed on 01.09.2023 whi
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