Manorama Kumari, Member - (1.) The instant application is filed by the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code with claim of Rs. 23,68,862/- as against the Corporate Debtor i.e. Duncan Industries Limited.
(2.) On receiving the notice, the Corporate Debtor appeared and raised preliminary objection with regard to the maintainability of application on the ground that: (i) Notice so issued by the Operational Creditor is bad in the eye of law inasmuch as the same is not issued as required under the Insolvency & Bankruptcy Code to be issued in Form-3. In fact, the demand notice was issued by the Advocate. In support of the contention, the Corporate Debtor relied on the judgment passed by the Hon'ble Chairperson in company Appeal (AT) (Insolvency) 39/2017. (ii) Secondly, the Corporate Debtor submitted that in view of the notification dated 28th January, 2016 of the Ministry of commerce and Industry as also as relied upon by the Operational Creditor at page No. 39 of the petition, the instant application is not maintainable. The notification which is issued by the Ministry of Commerce and Industry (Department of Commerce), New Delhi dated 28th January, 2016 reflects that Tea Board under the direction of the Central Government caused inspection of all the fourteen Gardens owned by M/s. Duncan Industries Ltd., and submitted a report and accordingly, the Central Government found that the Tea gardens as listed below, are being managed which is highly detrimental to the Tea industry and to public interest: (i) Birpara Tea Estate (ii) Garganda Tea Estate (iii) Lankapara Tea Estate (iv) Tulsipara Tea Estate (v) Huntapara Tea Estate (vi) Dhumchipara Tea Estate (vii) Demdima Tea Estate Therefore, in exercise of the powers conferred by sub-section (1) of section 16E of the Tea Act. 1953(29 of 1953), the Central Government authorised the Tea Board to take immediate steps to take over the management or the control of the above seven tea estates as per provisions of Chapter 1A of the Tea Act, 1953(29 of 1953). (iii) Thirdly, it is submitted by the Corporate Debtor that as per 16G of the Tea Act, 1953, if the management of the company is taken over by any person or body of person authenticated by the Central government under this Act, then no proceeding for the winding up of such company or the appointment of receiver in respect thereof, shall lie in any Court except with the consent of the Central Government. Hence, the petition filed by the Operational creditor is not maintainable and is required to be dismissed.
(3.) On the other hand, the Operational Creditor submitted that this unit is not covered by the notification. Further, the Operational Creditor was the employee of Gungaram Tea Garden and does not fall under the notification.;