Page 137 - IBC Orders us 7-CA Mukesh Mohan

Order Passed Under Sec 7
Hon’ble NCLT Principal Bench

one of the documents it may vary as the calculation has been made for different dates. Therefore, it would

not be a material factor warranting the dismissal of the application. Any objection to the amount of
default shall remain available to the 'corporate debtor' before the 'Committee of Creditors'.

21. In order to arrive at a correct conclusion, it would be further necessary to examine the provisions of
Section 7(2) and 7(5) of the Code which read as under:

"Initiation of corporate insolvency resolution process by financial creditor,

(1) ..................

(2) The financial creditor shall make an application under sub-section (1) in such form and manner and
accompanied with such fee as may be prescribed.

(3) ..................

(4) ..................

(5) Where the Adjudicating Authority is satisfied that-

(a) a default has occurred and the application under sub-section (2) is complete, and there is no
disciplinary proceedings pending against the proposed resolution professional, it may, by order, admit
such application; or

(b) default has not occurred or the application under sub-section (2) is incomplete or any disciplinary
proceeding is pending against the proposed resolution professional, it may, by order, reject such

application:

Provided that the Adjudicating Authority shall, before rejecting the application under clause (b) of sub-

section (5), give a notice to the applicant to rectify the defect in his application within seven days of
receipt of such notice from the Adjudicating Authority."

A conjoint perusal of the aforesaid provision would reveal that form and manner of the application has to
be the one prescribed by the authorities. It is required to be accompanied by the prescribed fee. It is

further evident that if the application is incomplete as per the requirement of Section 7(2) of the Code
then this Tribunal being the Adjudicating Authority may reject it. However, proviso to Section 7(5) of the
Code postulates that before rejecting the application on the ground that it is incomplete in terms of

Section 7(2) of the Code the Tribunal is obliged to give notice to the applicant to rectify the defect in his

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