M.K. Shrawat, Member - (1.) This Petition is transferred from Hon'ble High Court where it was numbered as "Company Petition No. 654/2016". The said Petition was filed under the old provisions of the Companies Art, 1956 under section 433(e) and section 434 of the Companies Act, 1956 for claiming an outstanding debt of Rs. 1,36,68,000.
(2.) Thereafter the said Petition was transferred to NCLT, Mumbai. Thereupon, complying the provisions of the I & B Code, the Petitioner has filed a fresh Application on requisite Form No. 5 before NCLT on 21-04-2017 and therein also the "Operational Debt" was stated to be Rs 1,36,68,000. It is stated that the Petitioner as a Sole Proprietor of M/s. M. Tex-Chem has supplied chemicals, pigments, etc. to the Respondent Debtor M/s. Maharaja Dyeing Private Limited having its office in Dombivli (East), District Thane, Maharashtra, alleged to be an "Operational Debtor".
(3.) A preliminary legal question has been raised from the side of the Respondent Debtor that the matter being sub-judice before the Hon'ble High Court, hence no parallel proceedings under I & B Code 2016 must be carried out simultaneously. The Respondent has stated that as per the powers conferred under sub-sections (1) and (2) of Section 434 of the Companies Act, 2013 read with sub-section (1) of Section 239 of the Insolvency and Bankruptcy Code, 2016, the Central Government made the Companies (Transfer of Pending Proceedings) Rules 2016, which came into force from 15-12-2016 in accordance with Notification dated 07-12-2016. As per Rule 5 of the said Rules, 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 should be transferred to the appropriate Bench of the National Company Law Tribunal (NCLT) and in NCLT, such applications are to be treated as Applications under Section 7, 8 or 9 of the Code as the case may be and dealt with in accordance with Part-II of the Code. 3.1 He has further stated that the old Petition was filed on 30-07-2016 before the Hon'ble High Court, Bombay and came up for acceptance before the Company Registrar on 29-11-2016. The Petitioner was directed to serve a copy of the Petition upon the Respondent. According to the claim of the Respondent, the Petition was served on 14-12-2016. The Respondent has further stated that according to the Inward Register of the Respondent Company, the Petition was received on that date. So the argument is that since the Petition had already been served upon the Respondent Company before the transfer rules were notified which came into effect on 15-12-2016 therefore the captioned Petition was wrongly transferred to NCLT. 3.2 The next argument is that the Petition under section 9 was defective because the requisite Form No. 5 was incomplete, devoid of the necessary details and particulars. One of the defect according to the Learned Counsel was that the Petitioner had not furnished the copy of the Invoices demanding the payment. It has also been pleaded that the Demand Notice as per Section 8 has not been issued. It has also been pleaded that vide a letter of 19-11-2015 the Respondent Company had raised the issue of inferior quality of goods. The Petitioner had not filed any Affidavit stating on oath that there was no "dispute". The Petition also has not placed on record the statement of Bank Account to show that the Debt in question had not been repaid. It is pleaded that there was also suppression of material facts, hence the Petition deserves to be rejected.;