- (1.) The Applicant has preferred the application under Section 9 of the Insolvency and Bankruptcy Code, 2016 for initiation of Corporate Insolvency Resolution Process against M/s. Adel Landmarks Ltd. The Adjudicating Authority (National Company Law Appellate Tribunal), New Delhi Bench by impugned order dated 18th September, 2017 dismissed the application in view of pendency of winding up proceedings before the Hon'ble High Court, New Delhi in C.P. No. 312 of 2016.
(2.) Similar issue fell for consideration before this Appellate Tribunal in "M/s. Unigreen Global Private Limited Vs. Punjab National Bank & Ors." Company Appeal (AT) (Insolvency) No. 81 of 2017" dated 1st December, 2017, though, that was the case relating to application by 'Corporate Applicant' under Section 10 of the 'I & B Code'. In the said case, this Appellate Tribunal noticed the relevant provisions and observed: "28. In a case where a winding up proceedings has already been initiated against a Corporate Debtor by the Hon'ble High Court or Tribunal or liquidation order has been passed in respect of Corporate Debtor, no application under Section 10 can be filed by the Corporate Applicant in view of ineligibility under Section 11(d) of I & B Code, as quoted below: "11. Persons not entitled to make application - The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:-- (a) a corporate debtor undergoing a corporate insolvency resolution process; or (b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or (c) a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this Chapter; or (d) a corporate debtor in respect of whom a liquidation order has been made. Explanation.-- For the purposes of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor." 29. In view of the aforesaid provision where a winding up proceeding has already been initiated under the Companies Act, 1956/2013 by the Hon'ble High Court such cases have not been transferred to National Company Law Tribunal, pursuant to "Companies (Transfer of Pending Proceedings) Rules, 2016", framed by the Central Government. 30. Clause (d) of Section 11 refers to "liquidation order", against a Corporate Debtor. The word 'winding up' has not been mentioned therein. For the said reason by Section 255 read with Schedule 11 of the I & B Code, in Section 2 of the Companies Act, 2013 for clause (23), the following clause has been substituted: "1. In section 2,-- (a) for clause (23), the following clause shall be substituted, namely:-- xxx xxx xxx "(23) "Company Liquidator" means a person appointed by the Tribunal as the Company Liquidator in accordance with the provisions of section 275 for the winding up of a company under this Act"; (b) after clause (94), the following clause shall be inserted, namely:-- "(94A) "winding up" means winding up under this Act or liquidation under the Insolvency and Bankruptcy Code, 2016, as applicable." 31. By aforesaid amendment, the legislatures have made it clear that the word "winding up" mentioned in the Companies Act, 2013 is synonymous to the word "liquidation" as mentioned in the I & B Code. 32. In view of the provisions aforesaid, we hold that, if any winding up proceeding has been initiated against the Corporate Debtor by the Hon'ble High Court or Tribunal or liquidation order has been passed, in such case the application under Section 10 is not maintainable. However, mere pendency of a petition for winding up, where no order of winding up or order of liquidation has been passed, cannot be ground to reject the application under Section 10."
(3.) It is true that the Appellant is not covered by Section 11 of the 'I & B Code', however, we are of the view that the ratio laid down in "M/s. Unigreen Global Private Limited Vs. Punjab National Bank & Ors." is also applicable to the 'Financial Creditor'/'Operational Creditor' for the reasons recorded below.;