M.M.Kumar, President - (1.) Knowiz Solutions Private Limited had approached this Tribunal by filing the instant petition under sub-rule (1) of Rule 7 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Annexure A-l). It appears that the petitioner had earlier filed an application under Section 433(e) of the Companies Act, 1956 with a prayer for winding up the respondent company before the Hon'ble Delhi High Court and then filed an affidavit of compliance dated 05.06.2017 before this Tribunal showing that a demand notice dated 23.05.2017 under the provisions of Section 8 of the Insolvency and Bankruptcy Code, 2016 (for brevity 'the Code') has been sent by speed post which was delivered to the respondent on 26.05.2017. A perusal of the demand notice shows that the petitioner claims himself to be an 'Operational Creditor' because the demand notice is issued under Section 8 of the Code, However, in the affidavit dated 05.05.2017 the petitioner claims that it was filing an application under Sub Rule 1 of Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. A perusal of Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 would show that such an application is filed by Corporate Debtor inviting an order for initiation of the insolvency Resolution Process in respect of Corporate persons itself. It is appropriate to extract the affidavit dated 05.05.2017 which reads as under: - "1. I say and submit that I am the authorized representative of the petitioner company by virtue of Board Resolution dated 11.04.2017, I am well conversant with the facts of the case and I am thus competent to swear the present affidavit. 2. I say and submit that I got issued legal notice of demand dated 11.05.2016 under the provisions of Section 434 (1) (a) of the Companies Act, 1956 demand a sum of Rs. 13,27,735/- together with interest@ 24% per annum w.e.f. 20.06.2016 till payment. The same was sent to the respondent company. The same was however, returned unserved with remarks "left without address". 3. I say and submit that on failure of repay the said outstanding amount a winding up petition being C.P. No. 1082/ 16 was filed before Hon'ble Delhi High Court on 24.10.2016. The said winding up petition was transferred before this Hon'ble Tribunal in terms of the notification Regd. No. DL-330004/99 dated 07.12.2016 issued by the Ministry of Corporate Affairs and in particular, Clause 5 thereof was transferred before the Hon'ble Tribunal vide order dated 20.03.2017. 4. I say and submit that the said petition under the Companies Act, 1956 may be treated and considered under new Act in accordance with the law. 5. I say and submit that the petitioner is filing an application under Sub Rule (1) of Rule 7 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against the respondent company. Copy of the said application is annexed herewith as Annexure A-l. 6. I say and submit that the petitioner propose to appoint Mr. Mukesh Kumar Grover as an insolvency professional registered with The Indian Institute of Insolvency Professionals of ICAI having registration Number IBBI/IIPA-001/IP-00393/2016-17/1410. The written communication by the Insolvency Professional is annexed herewith as Annexure A-2. 7. I say and submit that Getit Transnational Private Limited, the corporate debtor was, at the insolvency commencement date, being the 29th August, 2016, justify and truly indebted to the petitioner company in the sum of Rs. 16,19,837/- as on 2nd May 2017. The petitioner is also entitled ' to future interest at the agreed rate of interest till payment. 8. I say and submit that in respect of my claim of the said sum or any part thereof, I have relied on the documents specified below: i. Agreement dated 27.05.2015 ii. Copy of Books of Accounts along with certificate under Section 65-B of Indian Evidence Act, year 2014-15 and 2015-16. iii. Copy of Form-26-AS obtained from Income Tax Website. iv. Copies of various emails between the parties. v. Copies of various invoices issued to respondent company. vi. Legal Notice of Demand dated 29.08.2016. vii. Copy of Board Resolution dated 11.04.2017 9. I say and submit that the said documents are true, valid and genuine to the best of my knowledge, information and belief. 10. I say and submit that in respect of the said sum or any part thereof, I have not nor have any person, by my order, to my knowledge or belief, for my use, had or received any manner of satisfaction or security whatsoever, 11. I say and submit that the contents of above paras No. 1 to 10 are true and correct to the best of my information, no part of it is false and nothing material has been concealed thereby." Para 5 of the affidavit categorically states that the petitioner was filing an application under Sub Rule (1) of Rule 7 of insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 whereas in the notice of demand dated 23.05.2017 it is projected that the notice was issued under Section 8 of the Code. The affidavit dated 05.06.2017 reads as under:- "1. That I am the authorized representative of the petitioner company in the above noted case and am well conversant with the facts of the case. I am thus competent to swear the present affidavit. 2. I say and submit that I have served demand notice dated 23.05.2017 under the provisions of Section 8 of Insolvency and Bankruptcy Code, 2016 vide speed post consignment No. ED237600326IN. Copy of demand notice dated 23.05.2017 along with documents together with original postal receipt and Internet generated tracking report of Indian Post are annexed hereto showing "Item Delivered" on 26.05.2017. 3. I say and submit that stipulated 10 days have expired and the petition is complete for admission hearing. 4. I say and submit that the contents of the above affidavit are true and correct."
(2.) On a detailed examination of the pleadings it was not possible to decipher whether the petition has been filed under Rule 7(1) read with Section 10 of the Code or the petition has to be treated as the one under Section 9 of the Code. Rule 7 (1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 reads as under:- " Application by corporate applicant 7.(1) A corporate applicant, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under section 10 of the Code in Form 6, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) The applicant under sub-rule(l) shall dispatch forthwith, a copy of the application filed with the Adjudicating Authority, by registered post or speed post to the registered office of the corporate debtor." A perusal of the Rules shows that a Corporate Debtor can approach the Tribunal for initiation of a Resolution Process under Section 10 of the Code by filing an application on the Form 6. Form 6 is necessarily related to a 'Corporate debtor' invoking Section 10 of the Code and has been created under Rule 7 (1) of the Adjudicating Authority Rules . On the contrary the demand notice is stated to have been issued under Section 8 of the Code which depicts that the petitioner claims himself to be an 'Operational Creditor'. There are thus patent contradictions in the claim made by the petitioner which cannot be resolved by reading it one way or the other. Therefore, there is no option except to dismiss this petition as misleading and contradictory.
(3.) For the reasons aforementioned, this petition fails and the same is dismissed with cost of Rs. 10,000/-. However, in the interest of justice we permit the petitioner to file a fresh petition by citing its correct status; and with correct and detailed particulars. The petition and all other applications stand disposed or.;