# In the matter of D. Muthukumar Vs. A. Premkumar & Another. CA (AT) No. 209-2017

> NCLAT judgment dated 2017-12-06. Citation: TCN-2017-NCLAT-00024. The case originates from an application filed by A. Prem Kumar & Another under Section 433(e)…

- **Court:** NCLAT
- **Order date:** 6 Dec 2017
- **Citation:** TCN-2017-NCLAT-00024
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/d-muthukumar-vs-a-premkumar-another-ca-5adf90b1

## Summary

### Background

The case originates from an application filed by A. Prem Kumar & Another under Section 433(e) & (f) of the Companies Act, 1956 before the High Court of Madras, seeking the winding up of a company. This case was later transferred to the National Company Law Tribunal (NCLT), Chennai Bench. The NCLT treated the application as one under Section 7 of the Insolvency and Bankruptcy Code (I&B Code), admitted it, declared a moratorium, and appointed an Interim Resolution Professional (IRP). The Appellant challenged this order, arguing that the Respondents are not 'Financial Creditors' and that the necessary facts were not properly presented to the Adjudicating Authority. The Appellant also submitted evidence suggesting repayment of the alleged debt.

## Facts

Prior to 2004, D. Muthukumar, along with his wife and Mr. P. Asokan and Mr. P. Velraj, conducted real estate business through M/s. K.K.Flats. In 2004, the company was floated and ventured into a land project belonging to M/s. Madura Coats Ltd. at Madurai, using funds from the proprietary concern and additional investments. The Respondents, A. Premkumar & Another, filed an application for winding up under Section 433(e) & (f) of the Companies Act, 1956, before the High Court of Madras, alleging that the Company had taken a loan from them and failed to repay it. The case was transferred to the Adjudicating Authority, which treated it as an application under Section 7 of the I&B Code. The Appellant, D. Muthukumar, argued that the Respondents are not 'Financial

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## Issues and analysis

### Issue 1: Whether the Adjudicating Authority was correct in treating the winding-up application under the …

**Ratio:** The ratio is based on the interpretation of Section 433(e) & (f) of the Companies

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**Reasoning:** The court reasoned that the Adjudicating Authority failed to properly ascertain whether

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**Interpretation:** The interpretation involves understanding the interplay between the Companies

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**Application:** In this specific case, the Adjudicating Authority's failure to properly

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## Parties

- **Judges:** S.J. Mukhop…; Bansi Lal…
- **Appellants:** D. Muthu…
- **Respondents:** A. Prem…

## Timeline

- **2017-08-21 — NCLT Ord…**: The Adjudicating Authority (NCLT), Chennai Bench, passed an order treating the winding-up…
- **2017-12-06 — NCLAT Or…**: The National Company Law Appellate Tribunal (NCLAT) set aside the NCLT's order, declaring…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 7 — Initiation of corporate insolvency resolution…](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-7)

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