Since an application under Section 9 of IBC cannot be treated as suit, bar of Section 69(2) of the Indian Partnership Act, 1932 is not attracted – Rourkela Steel Syndicate Vs. Metistech Fabricators Pvt. Ltd. – NCLAT New Delhi

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.

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If any Public depositor applies showing due of the debt claiming itself as operational creditor and the Resolution Professional or the Tribunal do not accept the claim on the ground that they are not financial creditor, we allow the appellant to raise the question before the Tribunal and if any adverse decision is given by the Tribunal, it will be open to the appellant to raise the issue before NCLAT- Hind Motors India Ltd. Vs. Adjudicating Authority NCLT, Chandigarh – NCLAT New Delhi

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