Status as on- 19/08/2022
The Delhi bench of the Hon’ble NCLAT in its recent judgment in the case of M/s Quippo Infrastructure Limited v M.R. Nirman Private Limited, Company Appeal (AT) (Insolvency) No. 1516 of 2019 stated that a banker’s certificate is not mandatorily required for an operational creditor to begin Corporate Insolvency Resolution Process (CIRP) under section 9 of Insolvency and Bankruptcy Code, 2016.
M/s Quippo Infrastructure Limited (Appellant) had filed a petition under section 9 of IBC to initiate CIRP proceedings against its debtor M.R. Nirman Private Limited (Respondent).
The petition was rejected on September 30, 2019, by the NCLT Kolkata Bench (“Adjudicating Authority”) on the grounds that the Demand Notice was not served upon the debtor as well as there was no proof of delivery or a Banker’s Certificate/Cheque/ Demand Money to support the claim of money receipt made by the Appellant.
The same was appealed by the Appellant in this case.
The Appellant contended that the Demand Notice had been duly served at the registered office of the Respondent which was not denied in the Affidavit of Reply by the Respondent as well. It further submitted that the proof of the same had been placed on record and the Hon’ble NCLT had erroneously rejected its petition.
The Respondent claimed that in the absence of proof of such delivery, the Respondent cannot be said to have any knowledge of the notice. Hence, the petition was barred by limitation.
Decision of the NCLAT
The Appellate Tribunal adjudicated that the proof of the delivery, i.e., Speed Post Receipt and Tracking Report was indeed submitted on record. Relying on the Supreme Court judgment in the case of Macquarie Bank Limited v. Shilpi Cable Technologies Ltd. it said that when a corporate debtor triggers the CIRP then all the documentation mentioned in the Code needs to be compiled. Whereas it is done by a Financial or Operational Creditor, the documents required are different. It can only do so on “clear evidence” of default on the part of the Debtor.
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