Before,: RIT Etition Under Rticle of The Onstitution of Arnia

TEAM CODE: T-02
Before,
THE HON’BLE SUPREME COURT OF NARNIA
WRIT PETITION W.P. No. 123 UMSC/2019 UNDER ARTICLE 32 OF THE CONSTITUTION OF
NARNIA
INNER PEACE PRIVATE LIMITED…………………………………........PETITIONER

V.
UNION OF NARNIA……………………………………………….…...…. RESPONDENT
CLUBBED WITH
COMPANY APPEAL (AT) (Ins) 123/2019 UNDER SECTION 61 OF IBC BEFORE NCLAT
TRANSFERRED TO SUPREME COURT UNDER SECTION 25 OF CPC
INNER PEACE PRIVATE LIMITED…………………………………........PETITIONER
V.
LE TRANQUILLE PRIVATE LIMITED…………………………….….. RESPONDENT
Memorial on behalf of the Petitioner

TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................. III
INDEX OF AUTHORITIES................................................................................................... IV
STATEMENT OF JURISDICTION..................................................................................... VIII
STATEMENT OF FACTS ..................................................................................................... IX
STATEMENT OF ISSUES .................................................................................................... XI
Whether this hon’Ble Court has Jurisdiction to entertain the petition and whether the
petition filed by Inner Peace Private limited is maintainable. ............................................ XI
Whether the NCLT’s order dated 17th November, 2018 admitting the petition under section
10 filed by Le Tranquille Private Limited and Consequential proceedings thereto should be
set aside. .............................................................................................................................. XI
Whether NCLT was right in ordering the stay of the Armorica EP by way of an interim
order. ................................................................................................................................... XI
Whether Sections 10, 30(2)(b), 31(1), 65 of the IBC are ConstitutionAL. ........................ XI
SUMMARY OF ARGUMENTS ........................................................................................... XII
Issue I: Whether this Hon’ble Court has jurisdiction to entertain the Petition and whether
the Petition filed by Inner Peace Private Limited in Maintainable. ................................... XII
Issue II: Whether the NCLT’s Order dated 17th November 2018 admitting the petition
under section 10 filed by Le Tranquille Private Limited and Consequential Proceedings
thereto should be set aside. ................................................................................................ XII
Issue III: Whether the NCLT was right in ordering the stay of the Armorica EP by the way
of an interim order. ............................................................................................................ XII
Issue IV: Whether sections, 10, 30(2)(b), 31(1) and 65 of the Insolvency and Bankruptcy
Code 2016, are Constitutional........................................................................................... XIII
arguments advanced ................................................................................................................... 1
ISSUE I: WHETHER THIS HON’BLE COURT HAS JURISDICTION TO ENTERTAIN
THE PETITION AND WHETHER THE PETITION FILED BY INNER PEACE
PRIVATE LIMITED IS MAINTAINABLE. ........................................................................ 1
[1.1] That the Petitioner has Locus Standi for filing of the Petition. ................................. 1
[1.2] Jurisdiction of the Supreme Court under Art. 32 and Art. 142 of the Constitution. . 3
[1.3] That NCLT being a quasi-judicial authority acted in violation of the principles of
natural justice. .................................................................................................................... 4
[1.4] That existence of an alternative relief is no bar to the grant of remedy under Article
32........................................................................................................................................ 4
ISSUE II: WHETHER THE NCLT’S ORDER DATED 17TH NOVEMBER 2018
ADMITTING THE PETITION UNDER SECTION 10 FILED BY LE TRANQUILLE
I
PRIVATE LIMITED AND CONSEQUENTIAL PROCEEDINGS THERETO SHOULD
BE SET ASIDE...................................................................................................................... 5
[2.1] That IPL is a rightful Operational Creditor within the meaning and scope of the
Insolvency and Bankruptcy Code. ..................................................................................... 5
[2.2] The process of initiation of CIRP is mala fide in its entirety and not done with an
intention to resolve an insolvency situation, but rather evade the law. ............................. 8
ISSUE III: THAT NCLT WAS RIGHT IN ORDERING THE STAY OF THE
ARMORICA EP BY WAY OF AN INTERIM ORDER. ................................................... 13
[3.1] That NCLT cannot avail the powers listed under Rule 11 of NCLT Rules to pass
interim orders under insolvency proceedings. ................................................................. 13
[3.2] That NCLT cannot look into the merits of the case to decide on a foreign decree. 14
[3.3] That by the virtue of Armorica being a non-reciprocating territory, the order is
executable in India. .......................................................................................................... 15
[3.4] The foreign decree is not affected due to an ex-parte default judgement. .............. 15
ISSUE IV: WHETHER S.10, S.30(2)(B), S.31(1) AND S.65 OF THE INSOLVENCY
AND BANKRUPTCY CODE ARE CONSTITUTIONAL. ............................................... 16
[4.1] S.10 of the Code is arbitrary and therefore fails to pass constitutional muster. ...... 17
[4.2] That the Challenge to Section 30(2)(b) with respect to prescription of a minimum
threshold for payment of dues during the stage of insolvency resolution process by
comparing “CIRP” to “Liquidation process” is in violation of Article 14. ..................... 18
[4.3] The binding imposition of S.31(1) on creditors is prejudicial to their lawful rights.
.......................................................................................................................................... 19
[4.4] That the Constitutionality of Sec 65 of IBC, with respect to the provision limiting
to levy of penalty as opposed to rejection of the petition for reasons contained therein is
unconstitutional. ............................................................................................................... 20
Prayer. ................................................................................................................................... VIII
II
LIST OF ABBREVIATIONS
ABBREVIATIONS FULL FORM

§ Section
¶ Paragraph
A.I.R. All India Reporter
Art. Article
A.T. Appellate Tribunal
BLRC Bankruptcy Law Reforms Committee
C.A. Company Appeal
CIRP Corporate Insolvency Resolution Process
C.L.C. Company Law Reporter
CoC Committee of Creditors
GULLP Gifting-U-a Lively-Life-Potion
IBBI Insolvency and Bankruptcy Board of India
IBC Insolvency and Bankruptcy Code, 2016
i.e. Id Est
Ins. Insolvency
IPL Inner Peace Private Limited
IRP Interim Resolution Professional
NCLT National Company Law Tribunal
NCLAT National Company Law Appellate Tribunal
S.C. Supreme Court
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Recorder
SIP Secret Ingredient Potion
UNCITRAL United Nations Convention on International

Trade Law
v. Versus
III
INDEX OF AUTHORITIES
Cases
Alchemist Asset Reconstruction Co. Ltd. v M/S. Hotel Gaudavan Pvt. Ltd., C.P. No. (I.B.)
23/P.B./2017/ ......................................................................................................................... 3
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1539. .................... 2
Arjun Singh v. Mohindra Kumar, A.I.R. 1964 S.C. 993. ........................................................ 13
Bulls Pvt. Ltd. v. Treasure World Developers Pvt. Ltd., 183 Comp. Cas. 491 (2014) ............. 7
Coffee Board v. Jt. Commercial Tax Officer, A.I.R. 1971 S.C. 870. ........................................ 3
Coimbatore District Central Coop Bank v. Empoyees Assn., (2007) 4 S.C.C. 669. ............... 20
D.A.V. College v. State of Punjab, 1971 2 S.C.C 261. ............................................................. 2
D.D.A. v. Skipper Construction Co. (P.) Ltd., 1996 4 S.C.C. 622. ........................................... 4
Developers Pvt. Ltd., 183 Comp. Cas. 491 (2014), Kesoram Industries and Cotton Mills Ltd.
v. C.W.T., 59 L.T.R. 767 S.C. (1966).................................................................................... 7
Dinesh Kumar Bhasin v. Batliboi Impex Ltd. & Anr. C.A. (A.T.) (Ins.) No. 318 (2018). ..... 17
Douglas v. Forrest, (1828) 4 Bing. 686 ................................................................................... 15
E.P. Royappa v. State of Tamil Nadu, (1974) 4 S.C.C. 3. ....................................................... 16
E-City Media Private Limited v. Sadhrta Retail Ltd., C.P. No. 367 (2009) .............................. 7
E-City Media Pvt. Ltd. v. Sadhrta Retail Ltd., C.P. No. 367 of 2009. ...................................... 7
Edelweiss Asset Reconstruction Co. Ltd. v. Tecpro Systems Ltd., (I.B.) 197 (P.B.) (2017). ... 6
Fedcko Pvt. Ltd.v. Bilgrami S.N., A.I.R. 1960 S.C. 415 ......................................................... 17
Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344.................................. 2
Ganga Prasad v. Ganeshi Lal, (1924) I.L.R. 46 All. 119. ........................................................ 15
Ghanshyam v Corporation of City of Nagpur [2009] SCC OnLine Bom 2379 ...................... 16
Ghanshyam v. Corporation of City of Nagpur, (2009) SCC OnLine Bom. 2379. .................. 16
I.R. Coelho v. Tamil Nadu, 1998 7 S.C.C. 550. ........................................................................ 2
In re Aircel Cellular Ltd. (2018) 210 Comp. Cas. 456 (N.C.L.T.). ......................................... 17
In re Antrix Diamond Exports Pvt. Ltd., (2018) 146 S.C.L. 28 (N.C.L.A.T.). ......................... 9
In re Unigreen Global Pvt. Ltd., C.A. No. 81 (2017). ............................................................. 10
Indar v. Thakur, A.I.R. 1921 LAH. 20. ................................................................................... 14
Indian Legal and Economic Forum v. Union of India, 1997 10 S.C.C. 728. ............................ 2
Industries Ltd. v. I.C.I.C.I. Bank, C.A. (A.T.) (Ins.) No. 1 & 2 (2017). .................................. 17
Innoventive Industries Ltd. v. I.C.I.C.I.Bank, C.A. No. 1 & 2 (2017). ................................... 10
International Woolen Mills v. Standard Wool (U.K.) Ltd., A.I.R. 2000 P.H. 182. ................. 15
IV
J.K. Jute Mills Co. Ltd. v. Surendra Trading Co., (2017) 138 C.L.A. 0258............................ 14
Kaliber Associates Pvt. Ltd. v. Mrs. Tripat Kaur, C.A. (A.T.) (Insolvency) No. 52 of 2017 ... 3
Kavalappara Kottarathil Kochuni v. State of Madras, A.I.R. 1959 S.C. 725 ............................ 4
Krishna Kraftex Pvt. Ltd. v. Krishna Kraftex Pvt. Ltd., C.P. No. (I.B.) 78 (2017). .................. 9
Laxmi Khandsari v. State of U.P., 1981 A.I.R. 873. ............................................................... 20
Lokhandwala Kataria Construction Pvt. Ltd. v. Nisus Finance and Investment Manager,
L.L.P., C.A. No. 9279 of 2017. ............................................................................................ 13
London & Northwestern Ry. Co. v. Lindsay, (1858) 3 Macq. 99. .......................................... 15
Mafatlal Industries Ltd & Others v Union of India & Others (1997) 5 SCC 536 ................... 16
Mafatlal Industries Ltd. & Others v. Union of India & Others, (1997) 5 S.C.C. 536. ............ 16
Maneka Gandhi v. Union of India A.I.R. 1978 S.C. 597 (625). .............................................. 17
Marine Geotechnics L.L.C. v. Coastal Marine Construction & Engineering Ltd., 2014
(2) Bom. C.R. 769, .............................................................................................................. 15
Mayaram v. Ravji 1 Bom. L.R. 539. ........................................................................................ 15
Moloji v. Shankar, A.I.R. 1955 All. 490.................................................................................. 15
Mrs. Jai Rajkumar v. Stanbic Bank Ghana Ltd., C.S. (Comm.Div.) D. No. 41408 (2018)..... 14
Narhari v. Pannalal, 1977 A.I.R. 164 ....................................................................................... 15
Power Grid Corporation of India v. Jyoti Structures Ltd., 246 D.L.T. 485 (2018). ................ 10
Pratik Ramesh Chirana v. Trinity Auto Components Ltd., C.P. No. 1032 (2017). ................. 19
Punjab National Bank v. James Hotel Ltd., C.P. (I.B.) No.15 (2017). ...................................... 3
R.Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, 1972 S.C. 414. .................................... 15
Rajbala v. State of Haryana, (2016) 2 S.C.C. 445. .................................................................. 16
Registrar of Companies v. Kavita Benefit P. Ltd., (1978) 48 Comp. 231 (Guj.). ..................... 8
Sankaran v Lakshmi, 1974 S.C. 1764. ..................................................................................... 14
Satya v. Teja, 1975 S.C. 105. ................................................................................................... 14
Shaligram v. Daulatram, (1962) I.N.S.C. 175 ......................................................................... 15
Starlog Enterprises Ltd. V. I.C.I.C.I. Bank Ltd., C.A. (A.T.) (Insolvency) No. 5 of 2017 ....... 3
State of Andhra Pradesh v. Hyderabad Vegetables Products Co. Ltd., (1962) 32 Comp. Cas.
64 A.P. ................................................................................................................................... 5
State of U.P. v. Mohd. Nooh, A.I.R. 1958 S.C. 86. ................................................................... 4
Sundaram v. Kandaswami, (1941) 1 M.L.J. 140. .................................................................... 15
Tata Chemicals Ltd. v. Raj Process Equpments and Systems Pvt. Ltd., C.P. 367 N.C.L.T.
(2018). .................................................................................................................................... 7
Ujjam Bai v. State of U.P., 1962 S.C. 1621............................................................................... 3
V
Ujjam Bai v. State of U.P., 1962 S.C. 1621............................................................................... 4
Union of India v. Raman Iron Foundry, 1974 A.I.R. 1265........................................................ 7
Union of India vs Raman Iron Foundry, 1974 A.I.R. 1265. ...................................................... 7
Usha Holdings L.L.C. & Anr. v Francorp Advisors Pvt. Ltd., C.A. (A.T.) (Insolvency) No. 44
(2018). .................................................................................................................................. 14
Uttara Foods & Feeds (P.) Ltd. v. Mona Pharmachem, C.A. No. 18250 of 2017. .................. 13
V. Nagrajan, Resolution Professional v. Meenakshi Energy Ltd., (2018) 146 S.C.L. 224
N.C.L.A.T. ........................................................................................................................... 11
Vaman Fabrics Pvt. Ltd. v. Punjab National Bank, (2018) Taxmann.com 95 (N.C.L.T. Ahd.)
.............................................................................................................................................. 17
Statutes
Civil Procedure Code § 13 (1908). .......................................................................................... 14
Insolvency and Bankruptcy Code § 31(1) (2016). ................................................................... 16
Insolvency and Bankruptcy Code § 8 (2016). ......................................................................... 17
National Company Law Tribunal Rules, Rule 11 (2016). ....................................................... 13
The Companies Act § 242(2)(m) (2016). ................................................................................ 13
The Companies Act § 271(2)(c) (2016). .................................................................................... 6
The Companies Act § 424 (2016). ............................................................................................. 3
The Insolvency and Bankruptcy Code (Second Amendment) Act, § 23(ii)(A) (2018). ............ 8
The Insolvency and Bankruptcy Code § 10 (2016). ...................................................... 9, 10, 16
The Insolvency and Bankruptcy Code § 13(1) (2016)............................................................. 10
The Insolvency and Bankruptcy Code § 14 (2016). ................................................................ 10
The Insolvency and Bankruptcy Code § 3(10) (2016)........................................................... 1, 5
The Insolvency and Bankruptcy Code § 3(11) (2016)............................................................... 5
The Insolvency and Bankruptcy Code § 3(8) (2016)............................................................. 1, 2
The Insolvency and Bankruptcy Code § 30(2)(b) (2016). ......................................... 7, 8, 16, 18
The Insolvency and Bankruptcy Code § 6 (2016). ................................................................ 6, 9
The Insolvency and Bankruptcy Code § 7 (2016). ............................................................ 10, 17
The Insolvency and Bankruptcy Code § 9 (2016). ............................................................ 10, 17
VI
Other Authorities
10 United Nation Commission on International Trade Law, General Assembly, Legislative
Guide on Insolvency Law 205 (2005). ................................................................................ 11
Moratorium, Cambridge Advanced Learner’s Dictionary (4th ed. 2013). .............................. 10
Notes on Clauses, Notes to the Insolvency and Bankruptcy Bill §16 (2015). ......................... 11
Rules
Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, Rule 7 (2016).
.............................................................................................................................................. 17
Constitutional Provisions
Indian Const. art. 142. ............................................................................................................ 1, 3
Indian Const. art. 300A. ........................................................................................................... 19
Indian Const. art. 32. .........................................................................................................passim
Indian Const. part III. ................................................................................................................. 2
Books
1 V.S. Wahi, Treatise on Insolvency and Bankruptcy Code, 247 (3d. ed. 2019). ................... 17
1 V.S. Wahi, Treatise on Insolvency and Bankruptcy Code, 57 (3d. ed. 2019). ....................... 5
1 V.S. Wahi, Treatise on Insolvency and Bankruptcy Code, 59 (3d. ed. 2019). ................... 5, 7
Reports
Hayes v. Hayes, (2014) E.W.H.C. 2694 (Ch. D.). ................................................................... 11
Insolvency and Bankruptcy Board of India, Annual Report 2016-17, (August 15, 2019, 6:54
PM), https://www.ibbi.gov.in/publication/reports. .............................................................. 12
Report of Bankruptcy Law Reform Committee, Ministry of Finance (2015). ............ 10, 11, 17
VII
STATEMENT OF JURISDICTION
The Counsel for the Petitioner humbly submits before the Hon’ble Supreme Court of Narnia,
the Memorial on behalf of the Petitioner, (IPL), having filed a Writ Petition bearing W.P. No.
123 UMSC/2019 under Article 32 of the Constitution of Narnia, 1950 clubbed with Appeal
bearing Comp. Appl (AT) (Ins) 123/2019 under Section 61 of Insolvency and Bankruptcy
Code transferred under Section 25 of Civil Procedure Code, 1908.
The present memorandum sets forth the facts, contentions and arguments in the present
case.
VIII
STATEMENT OF FACTS
¶ 1. Mr. Oogway started a company in the year 1992 called “Inner Peace Private Limited”
(IPL) and became its Founder and Managing Director. The company produced a plant-based
remedy for sleep related disorder. Mr. Shifu, an erstwhile student of Mr. Oogway, played a
key role in research of the remedy owing to his keen financial acumen. This resulted in
creation of a potion named “The Secret Ingredient Potion” (SIP). Shifu was appointed as the
General Manager of IPL in 1995. Further, IPL obtained intellectual property rights for SIP in
Narnia as well as overseas.
¶ 2. Beginning of 2018 saw small disagreements emerge between Shifu and Oogway over
sharing of profits. On 21st March, 2018, Shifu announced his short break from the company
with a public announcement not appreciated by Oogway. On 7th May, 2018, Shifu resigned
from IPL without any advance intimation.
¶ 3. As a result, Oogway began an internal enquiry about the state of affairs of the company.
This revealed that Dr. Vachir, who had been employed in IPL till 2013, had set up a company
named Le Tranquille Pvt. Ltd. (Le Tranquille) in the year 2014. On 31st January, 2018, Shifu
had acquired 60% of its shares. There were seven other shareholders. The Board of Directors
comprised of Shifu along with four other members. This company was involved in the same
line of business of IPL. They sold a production called “Gifting-U-a Lively-Life-Potion”
(GULLP).
¶ 4. In August 2018, Oogway came across an advertisement in the country of Armorica on

behalf of Le Tranquille promoting GULLP by mentioning SIP in its tagline and targeting the
customers of IPL. Thus, IPL instituted a suit of patent infringement against Le Tranquille in
Armorica. Le Tranquille entered appearance in the said suit and filed its written submission
through a legal counsel without challenging the jurisdiction of the court. Le Tranquille put up
the defense that the constituents of the two products were different which prompted IPL to
submit further documents and rejoinder. However, after its written submission, IPL failed to
attend the court proceedings. Therefore, a default judgement was passed by court of
Armorica on 1st November, 2018 holding Le Tranquille was liable to pay Narnian Rupees 30
Crores to IPL within 31st December, 2018.
IX
¶ 5. Le Tranquille had initiated corporate insolvency resolution process on 17th November,
2018 as per Section 10 of Insolvency and Bankruptcy Code, 2016 under laws of Narnia by
stating that Le Tranquille had been in debt of more than 60 Crores. Out of the three financial
creditors that Le Tranquille had, two banks didn’t appear while one – Union Bank of Narnia
declared no objection to the insolvency petition filed by Shifu. Consequently, NCLT
admitted the petition under Section 10 under IBC, ordered moratorium under Section 14 of
IBC and appointed Mr. Geriatrix as IRP.
¶ 6. For execution of the default order, upon prayer of IPL, the court in Armorica issued an
order of attachment against Le Tranquille’s real estate in Armorica on 22nd November, 2018.
Upon issuance of notice, brought to the notice of the court the CIRP proceeding and the
moratorium in effect. The court, however, held that IBC is not binding on courts of Armorica
and passed an order of attachment called “Armorica EP”. Oogway also wrote an email to the
IRP on 30th November, 2018 contending that the CIRP had been initiated with malicious
intention.
¶ 7. Meanwhile, upon Le Tranquille’s application, the NCLT passed an interim order staying
Armorica EP on grounds of lack of jurisdiction with the court in Armorica. IPL challenged
this order before NCLAT. Lack of information from Geriatrix also prompted IPL to file a
Writ Petition before the Supreme Court challenging the order of admission as well as
Sections 10, 30(2)(b), 31 and 65 of IBC as violative of Article 14 of the Constitution. Further,
the petition before NCLAT has been clubbed with Writ Petition through a Transfer Petition
before the Supreme Court.
¶ 8. A resolution plan has been submitted by Mr. Zeng and has approved by Geriatrix and
Committee of Creditors and the final order by NCLT is still pending. IPL has filed a rejoinder
claiming that the CIRP has been filed with a mala fide intention and that IPL should have
been granted with an opportunity of being heard. Further, IPL has challenged NCLT’s power
to grant interim order and to stay the Armorica EP. Objections have been filed on IPL’s
petition that the petition isn’t maintainable before Hon’ble Court not does the court have
jurisdiction, IPL lacks locus standi, a default judgement isn’t enforceable in India, NCLT can
pass interim order to stay orders of a foreign court and lastly, there’s no cause of action for
challenging the constitutional validity of IBC.
X
STATEMENT OF ISSUES
-I-
WHETHER THIS HON’BLE COURT HAS JURISDICTION TO ENTERTAIN THE

PETITION AND WHETHER THE PETITION FILED BY INNER PEACE PRIVATE
LIMITED IS MAINTAINABLE.
-II-
WHETHER THE NCLT’S ORDER DATED 17TH NOVEMBER, 2018 ADMITTING

THE PETITION UNDER SECTION 10 FILED BY LE TRANQUILLE PRIVATE
LIMITED AND CONSEQUENTIAL PROCEEDINGS THERETO SHOULD BE SET
ASIDE.
-III-
WHETHER NCLT WAS RIGHT IN ORDERING THE STAY OF THE ARMORICA

EP BY WAY OF AN INTERIM ORDER.
-IV-
WHETHER SECTIONS 10, 30(2)(b), 31(1), 65 OF THE IBC ARE

CONSTITUTIONAL.
XI
SUMMARY OF ARGUMENTS
ISSUE I: WHETHER THIS HON’BLE COURT HAS JURISDICTION TO

ENTERTAIN THE PETITION AND WHETHER THE PETITION FILED BY INNER
PEACE PRIVATE LIMITED IN MAINTAINABLE.
The Hon’ble Court has the jurisdiction to entertain the Petition under Art. 321 and Art. 1422
and the Petition filed by IPL is maintainable. The petitioner has locus standi for filing the
petition and the reasons for the same have been elaborated further. Furthermore, Hon’ble
Court can entertain the petition under Art. 32 and Art. 142. NCLT, by virtue of being a
quasi-judicial authority, has violated the principles of Natural Justice and the remedy for
same lies with the Hon’ble Court. Finally, it is contended that the existence of an alternative
relief isn’t a bar to relief under Art. 32.
PRIVATE LIMITED AND CONSEQUENTIAL PROCEEDINGS THERETO
SHOULD BE SET ASIDE.
It must be noted that the challenge raised by IPL in the Writ Petition bearing W.P. No. 123
UMSC/2019, against the order of admission dated 17th November 20183, flows from the
quandary of recognizing IPL as a rightful creditor within the Insolvency and Bankruptcy
Code. Pursuant to the same, IPL is a rightful Operational Creditor within the meaning and
scope of The Insolvency and Bankruptcy Code. Additionally, based on the sum and substance
of IPL’s grounds of Writ Petition read with the Transfer petition, it is submitted that, the
process of initiation of CIRP is mala fide in its entirety and not done with an intention to
resolve an insolvency situation, but rather evade the law.
ISSUE III: WHETHER THE NCLT WAS RIGHT IN ORDERING THE STAY OF
THE ARMORICA EP BY THE WAY OF AN INTERIM ORDER.
NCLT cannot avail the powers listed under Rule 11 of NCLT Rules to pass interim orders
nor can it expand its powers by clubbing of provisions under Companies Act. Further, NCLT
cannot look into the merits of the case to decide on a foreign decree. By the virtue of
Armorica being a non-reciprocating territory, the order is executable in India. Lastly, it is
contended that foreign court’s decree is not affected due to an ex-parte default judgement.
1
Indian Const. art. 32.
2
3
Moot Proposition ¶ 18.
XII
ISSUE IV: WHETHER SECTIONS, 10, 30(2)(B), 31(1) AND 65 OF THE
INSOLVENCY AND BANKRUPTCY CODE 2016, ARE CONSTITUTIONAL.
S.10, S.30(2)(b), S.31(1) and S.65 of the Code are unconstitutional to the extent that, S.10 of
the Code is arbitrary and therefore fails to pass constitutional muster. Additionally, that the
Challenge to Section 30(2)(b) with respect to prescription of a minimum threshold for
payment of dues during the stage of insolvency resolution process by comparing “CIRP” to
“Liquidation process” is in violation of Article 14. Furthermore, the binding imposition of
S.31(1) on creditors is prejudicial to their lawful rights. Lastly, that the Constitutionality of
S.65 of IBC, with respect to the provision limiting to levy of penalty as opposed to rejection
of the petition for reasons contained therein is unconstitutional.
XIII
ARGUMENTS ADVANCED
ISSUE I: WHETHER THIS HON’BLE COURT HAS JURISDICTION TO

ENTERTAIN THE PETITION AND WHETHER THE PETITION FILED BY INNER
PEACE PRIVATE LIMITED IS MAINTAINABLE.
¶ 1. It is humbly submitted that the Hon’ble Court has the jurisdiction to entertain the
Petition under Art. 324 and Art. 1425 and the Petition filed by IPL is maintainable. [1.1] The
petitioner has locus standi for filing the petition and the reasons for the same have been
elaborated further. [1.2] Further, Supreme Court can entertain the petition under Art. 32 and
Art. 142. [1.3] NCLT, by virtue of being a quasi-judicial authority, has violated the
principles of Natural Justice and the remedy for same lies with the Supreme Court.
[1.4]Finally, it is contended that the existence of an alternative relief isn’t a bar to relief
under Art. 32.
[1.1] THAT THE PETITIONER HAS LOCUS STANDI FOR FILING OF THE PETITION.
¶ 2. It is submitted that the Petitioner holds a sufficient locus standi to prove that the
petition filed by him is maintainable. It is submitted that Le Tranquille is a Corporate
Debtor in the present case under Section 3(8) of the Code6. It defines a Corporate Debtor as
a corporate person who owes a debt to any person. In the present matter, Le Tranquille owes
a debt to its creditors at various instances and therefore complies with the definition in this
statute. The locus standi of IPL is further substantiated on the following grounds.
[1.1.1] That IPL being a decree holder is a creditor under Section 3(10) of the Code.
¶ 3. It is submitted that IPL which holds a decree of a foreign court, that is, the Court of
Armorica satisfies the definition of a creditor under Section 3(10) of the Code7. It is
submitted that on 1st November 2018 a default judgement was awarded by the Court of
Armorica in favour of the Petitioner IPL and Le Tranquille was held liable to pay IPL
Narnian Rupees 30 crores8. Furthermore, there was no challenge against this award by Shifu
on behalf of Le Tranquille within the time period of 20 days under the Armorican law
4
5
6
The Insolvency and Bankruptcy Code § 3(8) (2016).
7
8
1
fromthe date of the grant of the award9. Therefore, it is submitted that a debt is owed to IPL
by Le Tranquille and IPL holds a decree of a court for the same.
[1.1.2] That Infringement of Fundamental Rights under Part III of the Constitution.
¶ 4. It is submitted that IPL was not given an opportunity of fair hearing by the NCLT as
IPL was neither a party to the proceedings nor was there any intimation regarding the
petition filed by Le Tranquille. As IPL holds a decree in its favour with regard to the debt
amount owed to it by Le Tranquille, it should have been given a notice by NCLT like the
other creditors of Le Tranquille. Under Section 3(8), IPL comes within the definition of a
creditor10.
¶ 5. It is submitted before the Hon’ble Court that there has been a violation of
Fundamental Rights under Part III of the Constitution11. It is submitted that Part III of the
Constitution which deals with “Fundamental Rights” is regarded as the basic structure of
the Constitution.12) An action lies in the Supreme Court only if there is an infringement of a
Fundamental Right13 and the violation of such rights is sine qua non of the exercise of the
right conferred by Art. 3214. The denial of a fair chance of being heard by NCLT to IPL
violates this right and there lies an action against the enforcement of Fundamental Right.
¶6. It is humbly submitted that maintainability of writ petition for enforcement of
fundamental rights can be questioned on the ground where disputed question of facts are
involved or question of law has been raised in the abstract. 15. In the present case, a
substantial question of law is involved with respect to question of law.
¶ 7. It is pertinent to note that a petition under Art. 32 may be filed to challenge the validity
of a law with reference to provisions other than those involving fundamental rights provided
it inevitably causes a restriction on enjoyment of fundamental rights. 16 The validity or
invalidity of the impugned law on the ground of legislative incompetence should purport to
infringe the fundamental rights of the petitioner as a necessary condition of its being
adjudicated.17
9
Id.
10
11
Indian Const. part III.
12
I.R. Coelho v. Tamil Nadu, 1998 7 S.C.C. 550.
13
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1974 S.C. 1539.
14
Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 1981 S.C. 344.
15
Indian Legal and Economic Forum v. Union of India, 1997 10 S.C.C. 728.
16
17
D.A.V. College v. State of Punjab, 1971 2 S.C.C 261.
2
[1.1.3] That Principles of Natural Justice have been violated.
¶ 8. It is important that principles of natural justice must be duly considered by the
Hon’ble Court while considering the claims filed by IPL against the debtor Le Tranquille.
The principles of Natural Justice have been upheld by the Calcutta High Court in Sree
Metaliks Ltd. & Anr. v. Union of India.18. The Court held that that NCLT and NCLAT are
required to afford a reasonable opportunity of hearing to the respondent before passing its
order. It is also held that it would be open to the parties to agitate their respective grievances
with regard to any order of NCLT or NCLAT as the case maybe in accordance with the law.
It is also open to the parties to point out that the NCLT and the NCLAT are bound to follow
the principles of natural justice while disposing of proceedings before them. Therefore,
anything contrary to it would be in violation of rules of natural justice.19
¶ 9. There being provisions in the Company Act, 201320 requiring the Tribunal to follow
the principle of natural justice, which has been duly held in several orders passed by the
Appellate Tribunal, it was held that impugned order passed by NCLT, Mumbai Bench was
prima facie illegal and was set aside by the Appellate Tribunal. It was further held that the
adjudicating authority should adopt a cautious approach in admitting insolvency
applications and adherence to the principles of natural justice. 21 In the present case, IPL was
not given a notice by the NCLT with regard to the initiation of the CIRP of Le Tranquille
and denied a right to a reasonable opportunity to agitate its grievances and offer its
objections before admission of the petition filed by Le Tranquille. Hence, there is existence
of a violation of the principles of audi alteram partem. Therefore, natural justice has been
violated at the instance of IPL.
[1.2] JURISDICTION OF THE SUPREME COURT UNDER ART. 32 AND ART. 142 OF THE
CONSTITUTION.
¶ 10. It is submitted that Article 3222 is available when a Fundamental Right is violated,
where the action taken is procedurally ultra vires or where the principles of natural justice
are infringed.23 An action lies where the principles of natural justice are violated.24 It is
18
38 W.P. 7144 (W.) (2017).
19
Punjab National Bank v. James Hotel Ltd., C.P. (I.B.) No.15 (2017).
20
The Companies Act § 424 (2016).
21
Starlog Enterprises Ltd. V. I.C.I.C.I. Bank Ltd., C.A. (A.T.) (Insolvency) No. 5 of 2017, Kaliber Associates
Pvt. Ltd. v. Mrs. Tripat Kaur, C.A. (A.T.) (Insolvency) No. 52 of 2017, Alchemist Asset Reconstruction Co.
Ltd. v M/S. Hotel Gaudavan Pvt. Ltd., C.P. No. (I.B.) 23/P.B./2017/
22
23
Coffee Board v. Jt. Commercial Tax Officer, A.I.R. 1971 S.C. 870.
24
Ujjam Bai v. State of U.P., 1962 S.C. 1621.
3
further submitted that the SC in the exercise of its jurisdiction can pass any decree or make
any order that is necessary for dispensing complete justice in the matter pending before it. 25.
Since, there has been violation of Fundamental Rights and Natural Justice of the Petitioners,
the SC has the power to exercise its jurisdiction under this Article.
¶ 11. It is important to note that to observe justness and fairness in deciding the matters
before it, the court has held it is advisable to leave its power under Art.142 undefined and
uncatalogued26 so that it remains elastic and can be moulded to suit the circumstances.
[1.3] THAT NCLT BEING A QUASI-JUDICIAL AUTHORITY ACTED IN VIOLATION OF THE

PRINCIPLES OF NATURAL JUSTICE.
¶ 12. It is submitted that NCLT is a quasi -judicial authority and is under an obligation to
act judicially.27 The NCLT did not order for notice to IPL despite IPL being a creditor. The
petitioner was denied the opportunity of being hard as it could submit its could not submit
its objections to the CIRP of Le Tranquille. This action of the NCLT with regard to IPL was
in violation of the principles of Natural Justice. It is submitted that in the case of Sinha
Govindji v. The Deputy Controller of Imports and Exports28, it was held that an action lies
under Article 32 against a quasi-judicial body if it fails to comply with the principles of
natural justice.
[1.4] THAT EXISTENCE OF AN ALTERNATIVE RELIEF IS NO BAR TO THE GRANT OF REMEDY

UNDER ARTICLE 32.
¶ 13. It is humbly submitted that in case where there has been a breach of fundamental
rights, the existence of an alternate remedy is no ground for refusal of proper relief. 29 It is
submitted that in this case there has been a breach of fundamental rights as well as the
principles of natural justice as explained earlier, therefore there lies an action under Article
32.30 It is submitted that even though there is alternate remedy available in the form of an
adjudicating authority, that is, NCLAT, its existence does not bar the grant of remedy under
Article 32.31
25
26
D.D.A. v. Skipper Construction Co. (P.) Ltd., 1996 4 S.C.C. 622.
27
Ujjam Bai v. State of U.P., 1962 S.C. 1621.
28
1962 1 S.C.R. 54.
29
State of U.P. v. Mohd. Nooh, A.I.R. 1958 S.C. 86.
30
31
Kavalappara Kottarathil Kochuni v. State of Madras, A.I.R. 1959 S.C. 725.
4
PRIVATE LIMITED AND CONSEQUENTIAL PROCEEDINGS THERETO
SHOULD BE SET ASIDE
¶ 14. Preliminarily, it must be noted that the challenge raised by IPL in the Writ Petition
bearing W.P. No. 123 UMSC/2019, against the order of admission dated 17th November
201832, flows from the quandary of recognizing IPL as a rightful creditor within the
Insolvency and Bankruptcy Code. Pursuant to the same, it is humbly submitted that [2.1] IPL
is a rightful Operational Creditor within the meaning and scope of The Insolvency and
Bankruptcy Code. Additionally, based on the sum and substance of IPL’s grounds of Writ
Petition read with the Transfer petition, it is submitted that, [2.2] The process of initiation of
CIRP is mala fide in its entirety and not done with an intention to resolve an insolvency
situation, but rather evade the law.
[2.1] THAT IPL IS A RIGHTFUL OPERATIONAL CREDITOR WITHIN THE MEANING AND SCOPE
OF THE INSOLVENCY AND BANKRUPTCY CODE.
¶ 15. It is humbly submitted to this Hon’ble Court that IPL shall be established as a rightful
Operational Creditor within the meaning and scope of The Insolvency and Bankruptcy Code
to the extent that [2.1.1] IPL is a creditor and holds a decree in its favour with respect to the
debt owed to it. Additionally, it is contended that [2.1.2] The debt owed to IPL is in the form
of damages that have been crystallised and adjudicated upon. Lastly, to further substantiate
the aforementioned submissions of the Petitioner, it is contended that [2.1.3] IPL has been
recognised as an Operational Creditor within the Resolution Plan approved by the CoC.33
[2.1.1] That IPL is a creditor to Le Tranquille and holds a decree in its favour with respect
to the debt owed to it.
¶ 16. Firstly, ‘creditor’ as defined in S. 3(10) means any person to whom a debt is owed and
includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor
and a decree-holder.34 Creditor has been defined to mean any person having a pecuniary
claim against the company, whether actual or contingent. Its meaning cannot be confined to
one to whom a debt is due at the date of the petition and who can demand immediate
32
33
34
5
payment.35 The term ‘creditor’ is of a wide import. Therefore, ‘creditor’ is wide enough to
include a person whose debt is contingent or prospective. 36 Additionally, ‘debt’ as defined in
S. 3(11) means a liability or obligation in respect of a claim which is due from any person
and includes a financial debt and operational debt.37 The existing obligation to pay is the sine
qua non of a debt. No pecuniary liability may arise in regard to claim for damages till the
court adjudicates upon the claims for damages and holds that defendant is liable to pay.38
¶ 17. Presently, IPL is one of the creditors of Le Tranquille by the virtue of a judgement
dated 1st November 2018, given by the courts of Armorica against Le Tranquille.39
Furthermore, ‘claim’ as defined in S. 6 means – (a) a right to payment, whether or not such
right is reduced to a judgment fixed, disputed, undisputed, legal, equitable, secured or
unsecured. (b) right to remedy for breach of contract under any law for the time being in
force, if such breach gives rise to a right to payment, whether or not such right is reduced to
judgement , fixed, matured, unmatured, disputed, undisputed, secured or unsecured.40
¶ 18. Hence, a debt is in the nature of a debtor’s obligation and a claim is in the nature of a
claimant’s right. An ‘Operational Creditor’ has been defined in S. 5(20) to mean, a person to
whom an operational debt is owed and includes any person to whom such a debt has been
legally assigned or transferred.41 Therefore, IPL has a claim to the damages awarded to it by
the virtue of the default judgement delivered on 1st November 2018 by the Courts of
Armorica against Le Tranquille and as a result Le Tranquille owes a debt of Narnian Rupees
30 Crores to IPL.42
¶ 19. Lastly, to strengthen IPL’s position as an Operational Creditor, it is established in law
that in case any of the claimants move appropriate forum for adjudication of its claim and
obtains decree, he shall be equated with and placed similarly to operational creditors. 43 Since,
IPL fulfils the aforementioned required criteria, the company must be treated for all purposes
of the CIRP as a rightful Operational Creditor.
35
State of Andhra Pradesh v. Hyderabad Vegetables Products Co. Ltd., (1962) 32 Comp. Cas. 64 A.P.
36
1 V.S. Wahi, Treatise on Insolvency and Bankruptcy Code, 57 (3d. ed. 2019).
37
38
39
40
The Insolvency and Bankruptcy Code § 6 (2016).
41
42
43
Edelweiss Asset Reconstruction Co. Ltd. v. Tecpro Systems Ltd., (I.B.) 197 (P.B.) (2017).
6
[2.1.2] That the debt owed to IPL is in the form of damages that have been crystallized and
adjudicated upon.
¶ 20. It is humbly submitted to Hon’ble court that a statutory definition of ‘debt’ as
contained in S.271(2)(c) of the Companies Act, 2013 illustrates the two essentials of a ‘debt’.
First, that it should be capable of ascertainment and second that such an ascertainment must
lead to a definite sum.44 On application of this principle to the case at hand, it is must be
observed that the judicially ascertained debt under the default judgement against Le
Tranquille is in the nature of a definite amount of damages amounting to Narnian Rupees 30
Crores.
¶ 21. According to law, the claim for unliquidated damages does not give rise to a debt until
the liability is adjudicated upon and damages assessed by an adjudicatory authority. 45
Damages become payable only when they are crystallised upon adjudication. Until and unless
an adjudication takes place with a resultant decree for damages, there is no debt due and
payable hence, damages require adjudication for crystallisation of debt. 46 For an alleged
claim to be described as Operational Debt it must be adjudicated upon by any competent
authority in law. Therefore, the claimant ought to have crystallised the damages under law
and only then, it could have claimed the amount of compensation.47
¶ 22. Additionally, NCLT observed that the claim regarding Financial Damages supported
with adjudication and was an ‘operational debt’ as defined under the IBC. It held that a claim
for damages becomes operational debt when the liability is adjudicated upon and damages are
assessed by a competent authority in law.48 Statutory damages are operational debts as within
the meaning of IBC.49 It is the fiat of the Court that makes the debt due. 50 Since IPL has
obtained a decree in its favour, the debt has been adjudicated upon by a competent authority
and has been crystallised51 in the nature of an Operation Debt, thus, in turn establishing IPL
as an Operational Creditor.
44
The Companies Act § 271(2)(c) (2016).
45
Union of India v. Raman Iron Foundry, 1974 A.I.R. 1265.
46
E-City Media Pvt. Ltd. v. Sadhrta Retail Ltd., C.P. No. 367 (2009).
47
Tata Chemicals Ltd. v. Raj Process Equpments and Systems Pvt. Ltd., C.P. 367 N.C.L.T. (2018).
48
E-City Media Private Limited v. Sadhrta Retail Ltd., C.P. No. 367 (2009), Union of India vs Raman Iron
Foundry, 1974 A.I.R. 1265.
49
CP No.367 of 2009 Assessment of Damages in Intellectual Property Rights Cases. David Llewelyn.
50
India Bulls Pvt. Ltd. v. Treasure World Developers Pvt. Ltd., 183 Comp. Cas. 491 (2014), Kesoram Industries
and Cotton Mills Ltd. v. C.W.T., 59 L.T.R. 767 S.C. (1966), Union of India v. Raman Iron Foundry, 1974
A.I.R. 1265.
51
7
[2.1.3] That IPL has been recognised as an Operational Creditor within the meaning of S.
30(2)(b) in addition to the Resolution Plan approved by the CoC.52
¶ 23. The defence mounted by Le Tranquille in its main objections to IPL’s petition alleges
that IPL is neither an Operational Creditor not a Financial Creditor. 53 This hollow defence
falls when the CoC by its own admission recognises IPL as an Operational Creditor within
the meaning of S. 30(2)(b)54 wherein it approves the Resolution Plan under S.30(4)55. To
further substantiate, The liability to pay a sum of money which is definite by the reason of
obligation is termed as debt.56 A debt is of two types, namely, solvendium in praesenti and
solvendum in futuro.57 That is, a debt is a sum of money which is no payable or will become
payable in future by reason of a present obligation.58 Therefore a contingent liability gives
rise to a claim against a debt that has been assigned to IPL by the virtue of a court decree in
its favour.
¶ 24. Lastly, the section amended by Insolvency and Bankruptcy Code (Second Amendment)
Act, 2018 provides that in clause (b) for word “repayment” the word “payment” shall be
substituted.59 An analysis of the legislative intent for this amendment points towards the
relaxation of the provisions of S.30(2)(b)60 so as to be more accommodative and in the
interest of all categories of Operational Creditors. Therefore, on the basis of the
aforementioned contentions as raised by the Petitioner, it is humbly submitted before this
Hon’ble Court that IPL is an Operational Creditor to Le Tranquille by the virtue of the
default judgement delivered in its favour on 1st November 2018.
[2.2] THE PROCESS OF INITIATION OF CIRP IS MALA FIDE IN ITS ENTIRETY AND NOT DONE
WITH AN INTENTION TO RESOLVE AN INSOLVENCY SITUATION, BUT RATHER EVADE THE
LAW.
¶ 25. It is the humble contention of the Petitioner that Le Tranquille has approached the
Hon’ble NCLT with unclean hands and initiated the application for Corporate Insolvency
Resolution Process with mala fide intention to stop all proceedings that IPL can initiate at
law, to recover the aforementioned dues in its entirety. The Petitioner shall establish the
52
53
54
The Insolvency and Bankruptcy Code § 30(2)(b) (2016).
55
The Insolvency and Bankruptcy Code § 30(4) (2016), Moot Proposition ¶ 19.
56
57
Id.
58
Registrar of Companies v. Kavita Benefit P. Ltd., (1978) 48 Comp. 231 (Guj.).
59
The Insolvency and Bankruptcy Code (Second Amendment) Act, § 23(ii)(A) (2018).
60
8
ulterior motives of Le Tranquille to the extent that, firstly, [2.2.1] The NCLT should have
applied its subjective mind to adduce the hidden and mala fide intentions of the Respondent.
Secondly, that, [2.2.2] The abuse of Moratorium by Le Tranquille to evade law is testament
to its ulterior motive. Furthermore, it is contended that, [2.2.3] The non-observance of
information symmetry and the non-adherence to the interests of IPL are against the true spirit
of the Code. Lastly,
[2.2.1] That the NCLT should have applied its subjective mind to adduce the hidden and
mala fide intentions of the Respondent.
[2.2.1.1] The Adjudicating Authority cannot act mechanically in admitting applications

under S.10 of the Code.
¶ 26. It is humbly submitted to this Hon’ble Court that the Principal Bench of the NCLT
at Delhi observed that it cannot mechanically admit Section 10 applications as it will open
a floodgate of people forming companies, incurring expenses and then enjoying the
moratorium.61 The Adjudicating Authority held that it was not sufficient just to meet the
requirements under section 10 which would automatically entitle the Corporate Debtor to
initiate such proceedings. The Bench did not deem it just, fit and proper to admit the
petition as initiation of the proceedings by the Corporate Debtor as the same would cause
irreparable loss and injury to the Consortium of Banks, and an uncalled-for protection to
the borrowers and various guarantors.62
[2.2.1.2] That Le Tranquille was ignorant towards signs of Early Financial Distress.
¶ 27. It is humbly submitted to this Hon’ble Court, that, early recognition of financial
distress is very important for the timely resolution of insolvency. A default test based for
the entry into the insolvency resolution process permits for early intervention such that the
Corporate Insolvency Resolution Process can be initiated at an early stage when the
Corporate Debtor shows early signs of financial distress. Through a reading of S.6 63 with
S.1064 it must also be noted that the ‘trigger’ for initiating CIRP is ‘default’. The threshold
set for ‘default’ as defined in S.3(12), is quite low, that is Rupees 1 lakh only.
¶ 28. Now, drawing an inference from the case at hand, it is brought to the attention of this
Hon’ble Court that Le Tranquille claims to be in default of more than Narnian Rupees 60
61
Krishna Kraftex Pvt. Ltd. v. Krishna Kraftex Pvt. Ltd., C.P. No. (I.B.) 78 (2017).
62
In re Antrix Diamond Exports Pvt. Ltd., (2018) 146 S.C.L. 28 (N.C.L.A.T.).
63
64
9
Crores and that too for over 4 years.65 In fact, it is admiteed that Le Tranquille was never
making continuous profits. This coupled with Shifu’s strong financial acumen that made
IPL one of the 100 most successful pharmaceutical companies in the world66 provides for a
case of mala fide intention on part of Le Tranquille. Additionally the accumulation of such
a large quantum of default on part of Le Tranquille considered along with the fact that the
company has never been making continuous profits, gives the impressions of willful
default.
[2.2.2] That the abuse of Moratorium by Le Tranquille to evade law is testament to its
ulterior motive.
¶ 29. The Code states within S.13(1)67, that the Adjudicating Authority, after admission of
the application under section 768 or section 969 or section 1070, shall, by an order—(a)declare
a moratorium for the purposes referred to in section 1471; It must be noted that the term
‘Moratorium’ has not been explicitly defined in the Code. In Cambridge Dictionary72 the
expression ‘Moratorium’ has been defined to mean “a stopping of an activity for an agreed
amount of time”. According to S.1473, a moratorium is a bar on proceedings of debt recovery
that may be initiated may be initiated or completed against the Corporate Debtor. 74 The
objectives of the provision appears to be to ensure that the corporate debtors are prevented
from misusing this relief provision. The Notes on Clauses state that the Adjudicating
Authority must ensure that the moratorium as granted under the CIRP is not abused and used
for extraneous considerations, such as to evade the law.75
¶ 30. Pursuant to the same , the National Company Law Appellate Tribunal (NCLAT) held
that the National Company Law Tribunal (NCLT) has the discretion to reject the debtor’s
application under section 10 on the ground that where the debtor has made an application for
CIRP with malicious intention to take advantage of the moratorium provisions of the IBC. 76
Subsequently, the NCLT, Principal Bench, New Delhi held that if the corporate debtors does
not disclose all the facts including facts in relation to the debts owed by it to its creditors and
65
66
67
68
69
70
71
72
Moratorium, Cambridge Advanced Learner’s Dictionary (4th ed. 2013).
73
74
Power Grid Corporation of India v. Jyoti Structures Ltd., 246 D.L.T. 485 (2018).
75
Report of Bankruptcy Law Reform Committee, Ministry of Finance (2015).
76
Innoventive Industries Ltd. v. I.C.I.C.I.Bank, C.A. No. 1 & 2 (2017).
10
were trying to misuse the provisions for CIRP under IBC for only taking benefit of
moratorium on actions against the corporate and its creditors, the application for CIRP would
be rejected.77
¶ 31. Therefore, in light of the fact that at the time of award of the default judgement Le
Tranquille displayed characteristic callousness in not appearing in Court even after being
afforded 5 opportunities to do so. Coupled with the fact that Shifu did not attempt to rectify
the glitch or procure the formal announcement of the award of Narnian Rupees 30 Crores,
against Le Tranquile, points towards the fact that Le Tranquille was relying upon initiating
CIRP under S.10 so as to abuse the subsequent grant of a moratorium in its favour to evade
the law and stop all proceedings to recover the said dues in its entirety.7879
[2.2.3] That the non-observance of information symmetry and the non-adherence to the
interests of IPL are against the true spirit of the Code.
¶ 32. The Courts must be alert to detect wholly spurious claims being put forward by a
debtor unwilling to use the law in its true spirit in order to raise a cloud of objections.80 In
the case at hand, IPL alleged ulterior motive on part of Le Tranquille vide, an email dated
30th November 2018. Wherein, IPL requested the appropriate information it needed to
establish that Le Tranquille had approached the NCLT with unclean hands.81 The
Appellate Tribunal held that the handing over documents or showing any document to any
creditor for the purposes of establishing its claim or challenging the insolvency application
will not amount to violation of the moratorium.82 Hence, the information asymmetry was
detrimental to the interests of IPL as a creditor.
¶ 33. The UNCITRAL Legislative Guide prescribes the following duties and functions of
the Insolvency Representative 49(e) Obtaining information concerning the debtor, its
assets, liabilities and past transactions including examining the debtor and any third
person having had dealings with the debtor.83 Additionally, duties of the Interim
Resolution Professional as enumerated within S.1884 of the Code oblige the IRP to ensure
information symmetry. The Interim Resolution Professional is a significant actor in the
77
In re Unigreen Global Pvt. Ltd., C.A. No. 81 (2017).
78
79
80
Hayes v. Hayes, (2014) E.W.H.C. 2694 (Ch. D.).
81
82
V. Nagrajan, Resolution Professional v. Meenakshi Energy Ltd., (2018) 146 S.C.L. 224 N.C.L.A.T.
83
10 United Nation Commission on International Trade Law, General Assembly, Legislative Guide on
Insolvency Law 205 (2005).
84
11
CIRP and has access to all the records and debts of the Corporate Debtor. 85 The Resolution
Professional becomes manager of the negotiation between the debtor and the creditors in
assessing the viability of the entity. Part of the task of the Resolution Professional is to
ensure as much equality of information about the entity to all participants in the
negotiations as possible. Thus, the Resolution Professional needs to ensure several features
giving first priority to the need to equality in the negotiation process. Therefore, it is
incumbent on the Resolution Professional to ensure fairness and impartiality in the
resolution process by promoting information symmetry.86
¶ 34. Lastly, In the case at hand, within the sum and substance of the Writ Petition filed
by IPL read with Transfer Petition, IPL states, that, the way the entire proceedings were
conducted establishes that Le Tranqiuille has sufficient money to pay off IPL’s debts, but
is using IBC proceedings to re-set the obligations against the law. The entire proceedings
were not done to satisfy the letter and spirit of the IBC.87 This allegation as raised by IPL
points towards the fact that the CIRP was initiated not with the objective of resolution of
insolvency but to evade the law and institute a change in management of the company to
evade the lawful debts due to IPL.
¶ 35. This may be made evident by a two-fold argument. Firstly, the average realisation
by financial creditors as a share of the admitted claims was just 43%, according to data
from the Insolvency and Bankruptcy Board of India (IBBI), for the period till 31st March
2019.88 The average realisation by Operational Creditors as a share of the admitted claims
is even lower. Secondly, as evident by the Resolution Plan approved by the CoC, not only
are the financial creditors the recipients of a record resolution process wherein the
Financial Creditors are realising 95% of their dues, but also, the admitted Operational
Creditors were given amounts ranging from 70-80%.89 Also an additional Narnian 7 crore
rupees are being brought in to restructure the company. In light of the allegations of hand-
in-glove ploy being used by Le Tranquille to divert its funds to other sources90 and the fact
that the Company has never been making continuous profits according to the statement
85
Notes on Clauses, Notes to the Insolvency and Bankruptcy Bill §16 (2015).
86
87
88
Insolvency and Bankruptcy Board of India, Annual Report 2016-17, (August 15, 2019, 6:54 PM),
https://www.ibbi.gov.in/publication/reports.
89
90
12
issued by Le Tranquille91 , it is evident that the resolution procedure has not been initiated
to satisfy the true spirit and object of the Code.
ISSUE III: THAT NCLT WAS RIGHT IN ORDERING THE STAY OF THE
ARMORICA EP BY WAY OF AN INTERIM ORDER.
¶ 36. It is humbly submitted before the court that [3.1] NCLT cannot avail the powers listed
under Rule 11 of NCLT Rules to pass interim orders nor can it expand its powers by clubbing
of provisions under Companies Act. [3.2] Further, NCLT cannot look into the merits of the
case to decide on a foreign decree. [3.3] By the virtue of Armorica being a non-reciprocating
territory, the order is executable in India. [3.4]Lastly, it is contended that foreign court’s
decree is not affected due to an ex-parte default judgement.
[3.1] THAT NCLT CANNOT AVAIL THE POWERS LISTED UNDER RULE 11 OF NCLT RULES
TO PASS INTERIM ORDERS UNDER INSOLVENCY PROCEEDINGS.
¶ 37. It is humbly submitted before the court that Rule 11 cannot be availed by NCLT
during insolvency proceedings. [3.1.1] Hence, NCLT cannot club Rule 11 with 242(2)(m) of
Companies Act to expand the power it doesn’t have. [3.1.2]
[3.1.1] Rule 11 cannot be availed by NCLT in insolvency proceedings.

¶ 38. It is humbly submitted before this Hon’ble Court that the power to pass interim orders
doesn’t lie with the NCLT under Rule 1192 as far as insolvency proceedings are concerned.
These rules have been devised keeping NCLT’s role in adjudication under Companies Act in
mind. This cannot be extended as far as insolvency proceedings are concerned. Court has
decided Rule 11 does not apply to IBC proceedings when the question was of applicability of
NCLT rules in insolvency proceedings.93 Hence, in this regard, any interim order passed by
NCLT falls under the said Rule 11 cannot be recognised as far as insolvency proceedings are
concerned.
[3.1.2] Rule 11 and Companies Act cannot expand powers of NCLT that it doesn’t
originally have.
¶ 39. As per Section 242(2)(m) of the Companies Act, tribunal has power to make
provisions on the matters which according to it are just and equitable.94 Also, as per Rule 11,
tribunal can use its "inherent powers" to make orders necessary for meeting the ends of
91
92
National Company Law Tribunal Rules, Rule 11 (2016).
93
Uttara Foods & Feeds (P.) Ltd. v. Mona Pharmachem, C.A. No. 18250 of 2017.
94
The Companies Act § 242(2)(m) (2016).
13
justice or to prevent abuse of the process of the Tribunal.95 However, section 242(2)(m) as
well as Rule 11 cannot be put together to amplify the powers of the NCLT which it otherwise
does not have the benefit.
¶ 40. One needs to bear in mind that “inherent powers” of a court or tribunal are those
powers necessary for the ordinary and efficient exercise of jurisdiction already conferred
upon it.96 Thus, section 242(2)(m)97 as well as Rule 1198 cannot be construed to enlarge and
expand the powers of the NCLT which it otherwise does not enjoy. The inherent power as
given under Rule 1199 cannot be exercised post acceptance of application by the NCLT.100
[3.2] THAT NCLT CANNOT LOOK INTO THE MERITS OF THE CASE TO DECIDE ON A FOREIGN
DECREE.
¶ 41. It is humbly submitted that NCLAT has clearly said that the validity of the foreign
decree cannot be challenged before NCLT and that it has to be done before an appropriate
forum.101 NCLT, the ‘adjudicating authority’ under the Insolvency and Bankruptcy Code,
was not a ‘court’ or a ‘tribunal’ and Insolvency Resolution Process’ not being a litigation,
hence cannot decide the legality of a foreign decree or go into its merits. Whatever findings
the Adjudicating Authority has given with regard to legality and propriety of foreign decree
in question being without jurisdiction is nullity in the eye of law.
¶ 42. Therefore, even if a foreign decree has not been executed by a Court in India as per
Section 13102, the NCLT doesn’t have the power to adjudicate upon its legality and
enforceability. It is not for the NCLT to decide whether a foreign court had jurisdiction.103
Herein, the ground for passing a stay order on the Armorica EP if found by the NCLT on the
reasoning that Armorican court didn’t have the jurisdiction. However, this cannot be assessed
without going into the merits of the case, which is clearly not within the ambit of NCLT.
NCLAT has, on instances, issued notice in appeals and inter alia observed that when
question of assessment of law was involved in a case, it directed the Adjudicating Authority
not to delve into the case.104
95
96
Arjun Singh v. Mohindra Kumar, A.I.R. 1964 S.C. 993.
97
The Companies Act § 242(2)(m) (2016).
98
99
Id.
100
Lokhandwala Kataria Construction Pvt. Ltd. v. Nisus Finance and Investment Manager, L.L.P., C.A. No.
9279 of 2017.
101
Mrs. Jai Rajkumar v. Stanbic Bank Ghana Ltd., C.S. (Comm.Div.) D. No. 41408 (2018).
102
Civil Procedure Code § 13 (1908).
103
Usha Holdings L.L.C. & Anr. v Francorp Advisors Pvt. Ltd., C.A. (A.T.) (Insolvency) No. 44 (2018).
104
J.K. Jute Mills Co. Ltd. v. Surendra Trading Co., (2017) 138 C.L.A. 0258.
14
[3.3] THAT BY THE VIRTUE OF ARMORICA BEING A NON-RECIPROCATING TERRITORY, THE
ORDER IS EXECUTABLE IN INDIA.
¶ 43. The order passed by the Court in Armorica, ‘Armorica EP’, is further applicable in
Narnia given that Armorica is a non-reciprocating territory.105 Foreign judgement includes a
foreign decree.106 A foreign judgment must satisfy the requirements of the Code of Civil
Procedure, 1908 (CPC) to be recognised in Narnia. Section 13 provides that a foreign
judgement may operate as res judicata except in six specified in section 13. 107 The true basis
of the enforcement of a foreign judgement is that the judgement imposes an obligation upon
the defendant and therefore, there must be a connection between him and the forum
sufficiently close to make it his duty to perform that obligation.108
¶ 44. A foreign Court has jurisdiction to deliver a judgment in rem which may be enforced
or recognised in an Narnian Court provided that the subject matter of the action is property,
whether movable or immovable within the jurisdiction of that Court.109
In case of a decree from a non-reciprocating foreign territory, the decree-holder should file,
in a domestic Narnian court of competent jurisdiction, a suit on that foreign decree or on the
original, underlying cause of action, or both110, an option still open to IPL for execution of
said decree. Therefore, the stay on the order creates disability for IPL.
[3.4] THE FOREIGN DECREE IS NOT AFFECTED DUE TO AN EX-PARTE DEFAULT JUDGEMENT.
¶ 45. The court has explained that a decree, just by the virtue of being ex-parte decree cannot
be regarded as a decree which is not on merits of the case. If a foreign court while delivering
its judgment has considered and weighed the claimant’s case and assessed his evidence, it
will be on merits, notwithstanding that it is ex-parte.111Le Tranquille has submitted to the
jurisdiction of Armorica court willingly. When defendant submits to the jurisdiction of a
foreign court by filling a written statement the decree passed by it is valid and executable in
Narnia.112 Filing written statements and attacking the jurisdiction amounts to submission
even if decree passed afterwards is ex parte113, which in this case has been done as Le
105
Moot Clarifications, ¶ 3.
106
Satya v. Teja, 1975 S.C. 105.
107
Indar v. Thakur, A.I.R. 1921 LAH. 20.
108
Sankaran v Lakshmi, 1974 S.C. 1764.
109
R.Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, 1972 S.C. 414.
110
Marine Geotechnics L.L.C. v. Coastal Marine Construction & Engineering Ltd., 2014 (2) Bom. C.R. 769,
Mayaram v. Ravji 1 Bom. L.R. 539.
111
International Woolen Mills v. Standard Wool (U.K.) Ltd., A.I.R. 2000 P.H. 182.
112
Narhari v. Pannalal, 1977 A.I.R. 164, Shaligram v. Daulatram, (1962) I.N.S.C. 175, Moloji v. Shankar,
A.I.R. 1955 All. 490.
113
Sundaram v. Kandaswami, (1941) 1 M.L.J. 140.
15
Tranquille had not only hired a legal counsel for representation but had also made written
submission to the court. 114 Where a suit is instituted, it will be recognised in Narnia for effect
will be given to the judgement, if the defendant appears and defends the suit brought against
him in that court without making objection to its jurisdiction.115 for having taken a chance of
judgement in his favour, it is not right he should take exception to jurisdiction when
judgement goes against him The possession of immovable property in a foreign country
116
gives the courts of that country jurisdiction to deal with the property itself , further
supporting the Armorican jurisdiction. Hence, immovable real estate of Le Tranquille in
Armorica has rightly been adjudicated upon and hence, makes the decree executable in
Narnia, consequentially, making the stay order an unnecessary hurdle in its execution.
ISSUE IV: WHETHER S.10, S.30(2)(B), S.31(1) AND S.65 OF THE INSOLVENCY
AND BANKRUPTCY CODE ARE CONSTITUTIONAL.
¶ 46. It is humbly submitted to this Hon’ble Court that, writ petition under Article 32117 is a
guarantee provided by the Constitution makers against arbitrary and discriminatory action. If
it is demonstrated that the action of the Authority exercising wide powers is invalid and
contrary to law, the Supreme Court can issue suitable directions to set aside any such
arbitrary action on the part of such an Authority118, this power of the Supreme Court extends
to the scope of declaring such an action or provision of an Act, unconstitutional.119 The
doctrine of arbitrariness as developed in the landmark E.P. Royappa120 case has been
rejuvenated and expanded since.121 Therefore, it is the humble contention of the Petitioner
that, S.10122, S.30(2)(b)123, S.31(1) 124
and S.65125 of the Code are unconstitutional to the
extent that, [4.1] S.10 of the Code is arbitrary and therefore fails to pass constitutional
muster. Additionally, [4.2] That the Challenge to Section 30(2)(b) with respect to prescription
of a minimum threshold for payment of dues during the stage of insolvency resolution
process by comparing “CIRP” to “Liquidation process” is in violation of Article 14.
Furthermore, [4.3] The binding imposition of S.31(1) on creditors is prejudicial to their
114
115
Ganga Prasad v. Ganeshi Lal, (1924) I.L.R. 46 All. 119.
116
Douglas v. Forrest, (1828) 4 Bing. 686, London & Northwestern Ry. Co. v. Lindsay, (1858) 3 Macq. 99.
117
118
Ghanshyam v. Corporation of City of Nagpur, (2009) SCC OnLine Bom. 2379.
119
Mafatlal Industries Ltd. & Others v. Union of India & Others, (1997) 5 S.C.C. 536.
120
E.P. Royappa v. State of Tamil Nadu, (1974) 4 S.C.C. 3.
121
Rajbala v. State of Haryana, (2016) 2 S.C.C. 445.
122
123
124
125
16
lawful rights. Lastly, [4.4] That the Constitutionality of Sec 65 of IBC, with respect to the
provision limiting to levy of penalty as opposed to rejection of the petition for reasons
contained therein is unconstitutional.
[4.1] S.10 OF THE CODE IS ARBITRARY AND THEREFORE FAILS TO PASS CONSTITUTIONAL
MUSTER.
[4.1.1] S.10 of the Code displays laxity in its application in comparison to S.7, S.8 and S.9
and is therefore arbitrary to the extent of such laxity displayed.
¶ 47. It is the humble contention of the Petitioner, wherein, an application was filed by a
Corporate Debtor to initiate CIRP by invoking provisions of S.10126 of the Code, read with
Rule 7, the learned senior advocate contended that conditions required to be fulfilled for
admission of application under S.10 of the Code are minimal in comparison to the strict
scrutiny of documentary evidence undertaken by the Adjudicating Authority in cases of
applications made under S.7127, S.8128 and S.9129.130
¶ 48. In addition to the laxity inherent within the bare provision of S.10, The provisions of
S.10 of IBC and rule 7 of IBC Adjudicating Authority Rules, 2016 131 are silent in respect of
furnishing a copy of balance sheet and audited statements of company before ROC, and that
such non-submission could not be bar to initiate corporate insolvency resolution process. 132
Additionally, the section also does not specify the exact number of years for which
information relating to assets, liabilities, etc., of the corporate applicant is to be given along
with the application.133 Collectively, this is antithetical not only to the information symmetry
that must be observed an promoted at each stage of the Resolution Process134 but is also
tantamount to placing S.10 at a higher pedestal in comparison to the other aforementioned
sections of the Code.
126
127
128
129
130
In re Aircel Cellular Ltd. (2018) 210 Comp. Cas. 456 (N.C.L.T.).
131
Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, Rule 7 (2016).
132
Vaman Fabrics Pvt. Ltd. v. Punjab National Bank, (2018) Taxmann.com 95 (N.C.L.T. Ahd.)
133
134
17
[4.1.2] That S.10 does not provide for an opportunity to a fair hearing and is therefore
unconstitutional to that extent.
¶ 49. The section does not provide for hearing to be granted to the applicant before admitting
or rejecting the application, neither does it call for any detailed inquiry into the merits of the
application.135 Tribunals are bound to follow the principles of natural justice while disposing
of applications before them.136 Where a statute is silent on the right of hearing, it does not in
express terms, oust the principles of natural justice, the same can and should be read into it.137
A basic principle of natural justice is that before adjudication of rights of individuals, the
persons who are likely to be affected by the decision should be given notice so that the
tribunal’s conscience is satisfied in that the individual had a fair chance to hearing,
representation and information.138
[4.2] THAT THE CHALLENGE TO SECTION 30(2)(B) WITH RESPECT TO PRESCRIPTION OF A

MINIMUM THRESHOLD FOR PAYMENT OF DUES DURING THE STAGE OF INSOLVENCY
RESOLUTION PROCESS BY COMPARING “CIRP” TO “LIQUIDATION PROCESS” IS IN
VIOLATION OF ARTICLE 14.
[4.2.1] That there has been a violation of article 14 with regard to the repayment of debts of
operational creditors.
¶ 50. According to Section 30(2)(b)139, the resolution professional shall examine each
resolution plan received by him to confirm that each resolution plan provides for the payment
of debts of operational creditors in such manner as may be specified by the Board which shall
not be less than the amount to be paid to the operational creditors in the event of a
liquidation of the corporate debtor under Section 53140. The resolution plan shall provide for
payment of insolvency resolution process costs in priority to other debt, repayment of
operational creditors, and compliance with applicable law and meet such other conditions as
may be specified by IBBI.141 It is submitted that under Clause 30 the operational debt does
not stand on the same footing as the financial debt of the corporate debtor. The expression
“operational debt” refers to any claim in respect of provisions of goods and services
135
Notes on Clauses of S.10. finddd
136
Dinesh Kumar Bhasin v. Batliboi Impex Ltd. & Anr. C.A. (A.T.) (Ins.) No. 318 (2018).
137
Innoventive Industries Ltd. v. I.C.I.C.I. Bank, C.A. (A.T.) (Ins.) No. 1 & 2 (2017).
138
Fedcko Pvt. Ltd.v. Bilgrami S.N., A.I.R. 1960 S.C. 415, Maneka Gandhi v. Union of India A.I.R. 1978 S.C.
597 (625).
139
140
141
18
including employment or a debt in respect of repayment of the dues arising under law for the
time being in force, and payable to the Central or State Government or any local authority. 142
[4.2.2] That the minimum threshold prescribed under Clause 30(2)(b) is manifestly
arbitrary.
¶ 51. It is humbly submitted before the Hon’ble Court that Section 30(2)(b) with respect to
prescription of a minimum threshold for payment of dues during the stage of insolvency
resolution process by comparing “CIRP” to “Liquidation process”.
¶ 52. It is submitted that financial creditors have the capability to assess the commercial
viability of the corporate debtor whereas operational creditors are typically not able to decide
on matters relating to commercial viability. It is pertinent to note that owing to this
differentia, it has to be ensured that the financial creditors do not treat the operational
creditors unfairly, any resolution plan must ensure that the OC receive an amount not less
than the liquidation value of their debt.143 The underlying assumption is that the corporate
debtor were to be liquidated but in this case the corporate debtor is at the stage of CIRP and
there is no initiation of a liquidation process. It humbly submitted that any comparison drawn
between CIRP and Liquidation process is not appropriate and manifestly arbitrary on the
ground that the intent behind each of them is different. CIRP process is aimed at revival and
restructuring a company whereas Liquidation is the last resort in cases where revival or
resolution is not feasible. According to the Chairperson of Insolvency and Bankruptcy Board
of India (IBBI), M. S. Sahoo, the soul of the Code is to keep the firm alive by balancing the
interest of all stakeholders for which a successful resolution is needed.
[4.3] THE BINDING IMPOSITION OF S.31(1) ON CREDITORS IS PREJUDICIAL TO THEIR

LAWFUL RIGHTS.
¶ 53. Since S.31(1) states that the resolution plan will be binding on all creditors of the
corporate debtor. In light of the aforementioned statutory provision there seems to be a lack
of clarity with respect to the status of claims of creditors who have not filed their claims as
per the CIRP Regulations, and the statutory remedy available to them. Further, in addition to
filing an appeal before appellate authorities as per the provisions of the Code the grounds for
appeal does not seem to suggest clearly if a case of non-submission of claims is covered as a
ground, a creditor may choose to resort to A.300A144 of the Constitution of India, since non-
142
143
144
Indian Const. art. 300A.
19
obstante nature of the Code cannot override the constitutional provisions, which states, no
person shall be deprived of his property save by authority of law. NCLT, Mumbai Bench
interpreted the phrase ‘if the adjudicating authority is satisfied’ under Section 31, observed
that ‘satisfaction’ must be objective, subjective or both, and to form an opinion, thorough
study of a resolution plan is required. A subjective satisfaction of the Resolution Plan must be
mandated by law which depends upon the logical analysis of the financial data supplied,
where a methodical scrutiny of the financial statement is expected before concurring with
approval of the CoC.145
[4.4] THAT THE CONSTITUTIONALITY OF SEC 65 OF IBC, WITH RESPECT TO THE

PROVISION LIMITING TO LEVY OF PENALTY AS OPPOSED TO REJECTION OF THE PETITION
FOR REASONS CONTAINED THEREIN IS UNCONSTITUTIONAL.
[4.4.1] That the levy of penalty is not in consonance with the Doctrine of Proportionality.
¶ 54. It is humbly submitted that even though there is locus standi to move to Adjudicating
Authority on the grounds of fraudulent or malicious intent, the relief that adjudicating
authority will provide is in the nature of fine. The ordinary meaning of proportionality is that
the administrative action should not be more drastic than it ought to be for obtaining desired
results. Proportionality shares the platform with’ reasonableness’ and courts while exercising
power of review take into consideration the course of action that could have been reasonably
followed. The doctrine is applicable in the situations where administrative action invades
fundamental rights.146 Similarly, the Supreme Court held that the law is clear on the point that
while deciding the reasonableness of the restriction on fundamental rights, the nature of the
right alleged to have been infringed, the underlying purpose of the restriction imposed, the
extent and urgency of the evil sought to be remedied thereby, disproportion of the imposition,
prevailing conditions at the time should all enter into judicial verdict.147 It is further
contended that even though the section provides for the imposition of penalty where the IRP
or Liquidation proceedings are initiated with mala fide intention, there is no provision with
respect to the rejection of the petition per se. This is not in consonance with the doctrine of
reasonableness and the action taken is not in proportion with the act of fraudulent initiation of
proceedings. Therefore, it is contended that Section 65 is in violation with Article 14
145
Pratik Ramesh Chirana v. Trinity Auto Components Ltd., C.P. No. 1032 (2017).
146
Coimbatore District Central Coop Bank v. Empoyees Assn., (2007) 4 S.C.C. 669.
147
Laxmi Khandsari v. State of U.P., 1981 A.I.R. 873.
20
PRAYER.
Wherefore, in the light of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed before this Hon’ble Court that it may be
pleased to:
UPHOLD the Writ Petition filed as maintainable
SET ASIDE the NCLT’s order dated 17th November 2018 and consequential proceedings
thereto.
SET ASIDE the NCLT’s interim order staying Armorica EP.
DECLARE Sections, 10, 30(2)(b), 31(1) and 65 of the Insolvency and Bankruptcy Code
2016, as unconstitutional.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience.
And for this, the Petitioner as in duty bound, shall humbly.

COUNSEL ON BEHALF OF PETITIONER
VIII

Before,: RIT Etition Under Rticle of The Onstitution of Arnia

Uploaded by

Copyright:

Available Formats

Before,: RIT Etition Under Rticle of The Onstitution of Arnia

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Before,: RIT Etition Under Rticle of The Onstitution of Arnia

Uploaded by

Copyright:

Available Formats

TEAM CODE: T-02

INNER PEACE PRIVATE LIMITED…………………………………........PETITIONER

UNION OF NARNIA……………………………………………….…...…. RESPONDENT

INNER PEACE PRIVATE LIMITED…………………………………........PETITIONER

LE TRANQUILLE PRIVATE LIMITED…………………………….….. RESPONDENT

Memorial on behalf of the Petitioner

ABBREVIATIONS FULL FORM

A.I.R. All India Reporter

A.T. Appellate Tribunal

BLRC Bankruptcy Law Reforms Committee

C.A. Company Appeal

CIRP Corporate Insolvency Resolution Process

C.L.C. Company Law Reporter

CoC Committee of Creditors

GULLP Gifting-U-a Lively-Life-Potion

IBBI Insolvency and Bankruptcy Board of India

IBC Insolvency and Bankruptcy Code, 2016

IPL Inner Peace Private Limited

IRP Interim Resolution Professional

NCLT National Company Law Tribunal

NCLAT National Company Law Appellate Tribunal

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Recorder

SIP Secret Ingredient Potion

UNCITRAL United Nations Convention on International

¶ 4. In August 2018, Oogway came across an advertisement in the country of Armorica on

WHETHER THIS HON’BLE COURT HAS JURISDICTION TO ENTERTAIN THE

WHETHER THE NCLT’S ORDER DATED 17TH NOVEMBER, 2018 ADMITTING

WHETHER NCLT WAS RIGHT IN ORDERING THE STAY OF THE ARMORICA

WHETHER SECTIONS 10, 30(2)(b), 31(1), 65 OF THE IBC ARE

ISSUE I: WHETHER THIS HON’BLE COURT HAS JURISDICTION TO

ISSUE I: WHETHER THIS HON’BLE COURT HAS JURISDICTION TO

[1.3] THAT NCLT BEING A QUASI-JUDICIAL AUTHORITY ACTED IN VIOLATION OF THE

[1.4] THAT EXISTENCE OF AN ALTERNATIVE RELIEF IS NO BAR TO THE GRANT OF REMEDY

[2.2.1.1] The Adjudicating Authority cannot act mechanically in admitting applications

[3.1.1] Rule 11 cannot be availed by NCLT in insolvency proceedings.

[4.2] THAT THE CHALLENGE TO SECTION 30(2)(B) WITH RESPECT TO PRESCRIPTION OF A

RESOLUTION PROCESS BY COMPARING “CIRP” TO “LIQUIDATION PROCESS” IS IN

VIOLATION OF ARTICLE 14.

[4.3] THE BINDING IMPOSITION OF S.31(1) ON CREDITORS IS PREJUDICIAL TO THEIR

[4.4] THAT THE CONSTITUTIONALITY OF SEC 65 OF IBC, WITH RESPECT TO THE

FOR REASONS CONTAINED THEREIN IS UNCONSTITUTIONAL.

And for this, the Petitioner as in duty bound, shall humbly.

You might also like