R.P. Nagrath, Member - (1.) Company petition was filed in the Hon'ble High Court of Punjab and Haryana for winding up of the Respondent Company for its inability to pay the 'debt' in terms of section 433 (e) of the Companies Act, 1956 (to be referred hereinafter as the Act), after having served the Respondent Company with a notice of demand in terms of section 434 of the Act. Annexure P-7 is the notice dated 17.12.2014, calling upon the Corporate Debtor-Respondent to pay the outstanding amount of Rs. 49,45,331.86 being the principal sum- and Rs.10,52,106.78 towards interest(r) 24% p.a. upto 30.11.2014. It is also admitted by the petitioner that certain payments were made thereafter and the respondent was called upon to pay the remaining outstanding amount As per the notice dated 25.05.2015 (Annexure P-9) the outstanding amount of principal for the goods delivered was Rs.34,85,548.86, apart from the interest @ 24% p.a. The Respondent, vide its reply dated 14.07.2015 (Annexure P-11) had undertaken to pay the balance amount of Rs.34,85,549 in 12 instalments as detailed in the reply. Therefore, from the aforesaid notice to the respondent, it was an admitted fact that the respondent was to pay an amount of Rs.34,85,548.86 as claimed by petitioner in the notice (Annexure
(2.) The instant petition was received by transfer to the Tribunal in terms of Rule 5 of the Companies (Transfer of Pending Proceedings) Rules, 2016 (for brevity the 'Rules') as notified on 07.12.2016. These Rules came into force with effect from 15.12.2016. Sub-rule 1 of rule 5 of the Rules reads as under - "(1) All petitions relating to winding up under clause (e) of section 433 of the Act on the ground of inability to pay its debts pending before a High Court, and where the petition has not been served on the respondent as required under rule 26 of the Companies (Court) Rules, 1959 shall be transferred to the Bench of the Tribunal established under sub-section (4) of section 419 of the Act, exercising territorial jurisdiction and such petitions shall be treated as applications under sections 7, 8 and 9 of the Code, as the case may be, and dealt with in accordance with Part II of the Code. Provided that the petitioner shall submitted all information's, other than information forming part of the records transferred in accordance with Rule 7, required for admission of the petition under sections 7, 8 and 9 of the code, as the case may be, including details of the proposed insolvency professional to the Tribunal within sixty days from date of this notification, failing which the petition shall abate." As per the amendment made in this Rule vide notification dated 28.02.2017, the period of furnishing all the required information has been extended to six months.
(3.) Accordingly, the petition received by transfer from the High Court is to be treated as an application filed under section 8 and 9 of the Insolvency and Bankruptcy Code, 2016 (for short to be referred hereinafter as the 'Code'). The petitioner is admittedly An operational creditor' and entitled to make an application in terms of section 9 of the code. Under Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity to be referred hereinafter as 'AAA Rules') an 'operational creditor' is to make an application for initiating corporate insolvency resolution process against the 'corporate debtor' in form 5, 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. Sub-rule (2) of Rule 6 further says that the applicant under sub-rule (1) 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'.;