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

> NCLAT judgment dated 2017-12-06. Citation: TCN-2017-NCLAT-00022. The appeal challenges an order by the Adjudicating Authority (NCLT, Chennai Bench) dated…

- **Court:** NCLAT
- **Order date:** 6 Dec 2017
- **Citation:** TCN-2017-NCLAT-00022
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclat-new-delhi/d-muthukumar-vs-a-premkumar-anr-ca-78f6979c

## Summary

### Background

The appeal challenges an order by the Adjudicating Authority (NCLT, Chennai Bench) dated August 21, 2017, which treated a winding-up application under the Companies Act, 1956, as an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, admitted it, and appointed an Interim Resolution Professional.

## Facts

The respondents, A. Prem Kumar & Another, initially filed an application under Section 433(e) & (f) of the Companies Act, 1956, before the High Court of Madras. This application sought the winding up of the company, M/s. K.K.Flats, on the grounds of its inability to pay debts. The case was subsequently transferred to the Adjudicating Authority (National Company Law Tribunal), Chennai Bench, Chennai, in accordance with "The Companies (Transfer of Pending Proceedings) Rules, 2016." The Adjudicating Authority, by an order dated August 21, 2017, treated the transferred application as one filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (I&B Code). Following this, the Adjudicating Authority admitted the application,

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## Issues and analysis

### Issue 1: Whether the Adjudicating Authority erred in treating an application for winding up under Section …

**Ratio:** An application for winding up under Section 433(e) & (f) of the Companies Act, 1956,

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**Reasoning:** The Adjudicating Authority failed to ascertain whether the 1st Respondent was a

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**Interpretation:** The court interpreted Rule 5 of "The Companies (Transfer of Pending

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**Application:** In this case, the 1st Respondent failed to demonstrate that they were a

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## Parties

- **Judges:** S.J. Mukhop…; Bansi Lal…
- **Appellants:** D. Muthu…
- **Respondents:** A. Prem…; A. Premkumar &…
- **Advocates:** For Appel…; Goutham Shivshanka…; +3 more

## Timeline

- **2004 — Company f…**: M/s. K.K.Flats was floated and…
- **October 25, 2014 — Statutory noti…**: Respondents issued a statutory notice alleging…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 239(1) — Power to make rules](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-239)

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