Hello, One of our debtor has issued a notice under MSME delayed payment act, and finally the case has been converted into permanent case at MSME Facilitation council. we have also issued a Notice under IBC 2016 as per form 3 & 4. but the debtor has not issued any payment of us. so we are planing to file another case under IBC 2016. so my question is: 1. As we have already filled a case under MSME facilitation council so when we filled a another case under IBC 2016, there is chance of rejection of the case under the IBC 2016. as we have to give declaration "there is no any other case pending in the any jurisdiction" 2. so please confirm should we go further after issuing notice to form 3 & 4 under IBC 2016. 3. what are the further process if our debtor having office in Nellore AP and we are in chhattisgarh. so please confirm the further process.
1. Sir as the dispute is pending before the council you cannot file before NCLT as the matter is in adjudication before other authority for the recovery of same debts.
2 you should either withdraw from.MSME and file or peruse same before the MSME council.
Duplicity of proceedings taking place simultaneously needs to be avoided, if they are exactly for the same of similar relief.
It is because of the above legal principle why they ask for a declaration under IBC if there is any other case pending in the matter with the jurisdiction of any other Court.
Go ahead with one of the two available legal remedies and not both of them simultaneously.
1. yes that is right, you are not allowed to approach two different adjudicating bodies for the resolution of the same dispute.
2. I would not advise you to initiate fresh proceedings under IBC 2016.
3. Go ahead with the case pending before the MSME
Regards
You have already filed case under MSME withdraw case filed under IBC act
Jurisdiction woukd be as per clauses in your agreement
Dear Client,
MSME is special code, so recovery proceeding will remain proceed and I & b act is for different purpose for declaring insolvent.
But once moratorium is ordered than MSME proceeding will stayed.
Declaration regarding pendency of MSME recovery will not effect i&b proceeding.
IB proceeding will commence where debtor has registered office.
The buyer is liable to pay compound interest with the monthly rests to the supplier on the amount at the three times of the bank rate notified by RBI in case he does not make payment to the supplier for his supplies of goods or services within 45 days of the acceptance of the goods/service rendered. (Section 16).
Every reference made to MSEFC shall be decided within a period of ninety days from the date of making such a reference as per provisions laid in the Act.
If the Appellant (not being the supplier) wants to file an appeal, no application for setting aside any decree or award by the MSEFC shall be entertained by any court unless the appellant (not being supplier) has deposited with it, the 75% of the award amount. (Section 19).
1. The case pending before MSMEFC may not be taken into consideration for this purpose, however it is advisable to take abundant caution in this regard.
2.If your company is coming under NCLT then read the following this connection:
A plea for insolvency is submitted to the adjudicating authority (NCLT in case of corporate debtors) by financial or operation creditors or the corporate debtor itself. The maximum time allowed to either accept or reject the plea is 14 days. If the plea is accepted, the tribunal has to appoint an Insolvency Resolution Professional (IRP) to draft a resolution plan within 180 days (extendable by 90 days). following which the Corporate Insolvency Resolution process is initiated by the court. For the said period, the board of directors of the company stands suspended, and the promoters do not have a say in the management of the company. The IRP, if required, can seek the support of the company’s management for day-to-day operations. if the CIRP fails in reviving the company the liquidation process is initiated.
3. Wherever he or you may be, you may have to attend the council or court where the matter has been filed and being heard.
