Arvind Gulsia Vs. Om Sai Boxes and Anr. – NCLAT New Delhi
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Arvind Gulsia Vs. Om Sai Boxes and Anr. – NCLAT New Delhi Read Post »
Hon’ble NCLT Hyderabad Bench held that in lieu of Section 69(2) of the Indian Partnership Act, 1932, it is imperative on the Petitioner to show that the Petitioner is a registered firm and that the Authorised Signatory is shown as partner in the Register of Firms. In the absence of the compliance of Section 69(2) of the Indian Partnership Act, 1932, the Petition filed is not maintainable and is liable to be rejected.
The Adjudicating Authority held that with respect to the same, reliance is placed on the judgement of Hon’ble NCLAT in the matter of Rourkela Steel Syndicate vs. Metistech Fabricators Pvt. Ltd. (2023) ibclaw.in 102 NCLAT. Therefore, it is clear that the bar under Section 69(2) of the Indian Partnership Act, 1932 would not apply to Applications filed under IBC, 2016. It is also held that per Section 10A of the IBC, 2016 and the MCA Notifications dated 24.09.2020 and 22.12.2020, no application for CIRP may be filed for defaults occurring between 25.03.2020 to 24.03.2021.
NCLAT held that An application under Section 9 of IBC cannot be said to be a suit and analogy of Hon’ble Supreme Court judgment in Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd & Anr [2019] ibclaw.in 16 SC, is fully applicable to the application filed under Section 9 IBC also. Further, also it is well settled by the judgment of the Hon’ble Supreme Court in B.K. Educational Services (P) Ltd. v. Parag Gupta and Associates [2018] ibclaw.in 32 SC that provision of Section 5 Limitation Act are also fully applicable in Section 7 & 9 IBC applications. Section 5 Limitation Act is not applicable in a suit which is also a clear indication that Application under Section 7 & 9 are not a suit.
In terms of section 69(2) of the Indian Partnership Act, 1932, no suit to enforce a right arising from a contract shall be initiated in any court by or on behalf of the firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the Firm. NCLT held that it is clear from the above that the provision would apply only to a ‘suit’ and not to proceedings. Applications filed under the IBC are not ‘suits’ but only proceedings, and therefore, we hold that the bar in terms of section 69(2) of the Indian Partnership Act, 1932, would not apply to applications filed under the IBC.
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