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Judgment
PER: CORAM
“Jaypee Infratech Limited.” (for brevity, hereinafter referred to as the ‘Operational Creditor’ or ‘JIL’) has filed the present petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (foe brevity, hereinafter referred to as the IBC, 2016) read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 with a prayer to initiate the Corporate Insolvency Resolution Process against “Jaypee Healthcare Limited.” (for brevity, hereinafter referred to as the ‘Corporate Debtor’ or ‘JHL’).
The Corporate Debtor namely, Jaypee Healthcare Limited. is a Company incorporated on 30.10.2012 with CIN U85191HR2012PLC129639 under the provisions of the Companies Act, 2013 having its registered office at Max Hospital Gurugram, Block B Sushant Lok Phase 1 Sadar Bazar, Gurgaon, Haryana, India, 122001, which is situated within the jurisdiction of this Tribunal. The Authorized Share Capital of the Corporate Debtor is Rs. 6,00,00,00,000/- and the Paid- up Share Capital is Rs. 4,61,71,61,080/- as per the Master Data annexed.
FACTS OF THE CASE
The facts of the case, briefly, as stated in the petition are as below:
The present petition has been filed by Jaypee Infratech Limited (hereinafter referred to as "Operational Creditor") against Jaypee Healthcare Limited (hereinafter referred to as "Corporate Debtor") for non-payment of an operational debt amounting to Rs. 18.44 Crores (excluding interest and charges). The Operational Creditor is engaged in the business of developing residential and commercial real estate projects and infrastructure, including the Yamuna Expressway from Noida to Agra. The Corporate Debtor was incorporated as a wholly owned subsidiary of the Operational Creditor.
A Project Transfer Agreement was entered into between JHL and JIL on 27.11.2012 whereby all assets, rights, privileges and obligations of JIL relating to development of the Super Specialty Hospital were assigned to the JHL. As per the Agreement and Group Communication dated 16.10.2014, JHL was liable to pay the electricity and other operational costs of the Super Specialty Hospital.
Further, vide Letter dated 28th September 2021, JIL requested JHL to make weekly payment of INR 25 Lakhs towards electricity bill of JHL (approximate electricity bill of JHL is INR 1 Crore per month) in order to continue the supply of electricity to JHL. Thereafter, JIL submitted concerns regarding outstanding electricity dues in the Annual General Meeting (AGM) of JHL held on 26.09.2022, the agenda of the AGM to be held on 26.09.2022 was also sent to JHL vide Letter dated 14.09.2022.
Further, JIL vide Letter dated 03.04.2023 informed JHL about the outstanding dues and requested JHL to clear the same in a timely manner. In response to JIL's letter, JHL vide Letter dated 26.04.2023 admitted the amount in default and committed to clearing the outstanding dues of 18.45 crores as on 31st March 2023. Despite the said admission, the Corporate Debtor has failed to pay the admitted operational debts.
Thereafter, JIL, through various communications, reminded JHL to clear the outstanding dues, however, even after acknowledging the payment of outstanding dues, JHL has not paid the outstanding dues. That on 18.12.2024, JIL raised an initial demand of INR 18.36 crores towards electricity and other related charges. On 23.12.2024, JIL revised its demand to INR 40.92 crores (including claim of interest). Thereafter, on 30.12.2024, JIL served a legal notice on JHL demanding payment of outstanding dues. That JHL vide Reply dated 10.01.2025 replied to the Legal Notice dated 30.12.2024, raising vague and baseless objections regarding: JIL' s failure to raise claims during JHL's CIRP; Alleged miscalculation of interest and charges; Adjustment of amount spent in Trauma Centre at Jewar and Mathura, bad faith by JIL to raise claims during financial distress of JHL.
The said objections raised by JHL in their reply have no legal basis, as is evident from the following: Proceedings initiated against JHL have been withdrawn whereinafter, the other creditors are not precluded from taking recourse to a proceeding under IBC; The outstanding electricity dues in dispute specifically relate to the Super Specialty Hospital and have no relation to the Trauma Centers which are governed by a separate License Agreement dated 11.10.2014, executed between JHL and JIL. The same is outside the scope of agreements under which the instant debt has arisen.
That JHL in their reply also raised false and baseless allegation stating incorrect application of a 5% additional charge on UPPCL bills, billing based on sanctioned load instead of actual demand and UPERC alleged discontinuation of 5% charge which were never raised by JHL before in any communication pertaining to outstanding electricity dues and these allegations are baseless and an afterthought by JHL. JHL vide Letter dated 26.04.2023 committed to clearing full outstanding dues and the present claim is pertaining to the said admitted debt. However, despite admission and assurance, JHL has miserably failed to make any payment to JIL towards their legally binding liability.
Accordingly, in compliance with applicable provisions of the Insolvency and Bankruptcy Code 2016, JIL served the Demand Notice dated 05.03.2025 via email, speed post and courier seeking payment of principal amount i.e. Rs. 18.4 Crores as admitted by JHL on the previous registered address of JHL and Demand Notice dated 18.03.2025 via email and speed post to the updated registered address of the Company. However, no reply was received from the Corporate Debtor. It is pertinent to mention that Demand Notice dated 18.03.2025 on the current registered address of JHL was returned as refused by JHL.
During the course of hearing before this Tribunal on 29.04.2025, the counsel for respondent raised objection that the petitioner has not supplied the copy of the petition and the earlier petition was filed before the NCLT Bench, Delhi, which has not been withdrawn so far. Accordingly vide order dated 29.04.2025, time was granted to the petitioner to place on record the proof of taking back the earlier application before the NCLT, Delhi Bench, along with other documents and the Petitioner was directed to supply the soft copy of the petition to the respondent during the course of day.
In compliance of the above order, the Petitioner filed an Additional Affidavit Vide diary no. 01054/1 dated 07.05.2025. The brief facts as stated in the affidavit, are as below:
The Operational Creditor had initially filed the application under Section 9 of the Code before the Hon’ble NCLT, New Delhi Bench on 31.03.2025. The Registry of the NCLT, New Delhi informed on 17.04.2025 that the application could not be entertained due to lack of territorial jurisdiction. Thereafter the same petition was filed with this Tribunal on 17.04.2025.
That subsequent to the hearing dated 29.04.2025 before this Tribunal, the counsel of the Operational Creditor vide email dated 30.04.2025 requested for formal communication confirming non-registration of any application and received confirmation via email dated 02.05.2025 that the said application was declined and archived. The Registrar of NCLT, New Delhi, passed an order dated 02.05.2025 under Rule 28(4) of the NCLT Rules, 2016, declining registration of the previous application.
Therefore, it is evident that there is only one application pending in respect of the Corporate Debtor, being CP (IB) 125 of 2025 filed before this Tribunal. Although service of the application was already effected upon the Corporate Debtor on 31.03.2025, the same was again served via email dated 29.04.2025 in compliance with directions of this Tribunal.
The earlier petition was filed on 31.03.2025 with affidavit dated 29.03.2025 and since the Notice of Dispute dated 30.03.2025 was subsequently received, the same was not part of the original petition and since the said notice is now received the petitioner is seeking modification to its earlier affidavit to the extent that a notice of dispute has been received by Operational Creditor.
The respondent, in response to the Additional affidavit, filed a Counter Affidavit vide diary no.01054/3 dated 14.05.2025. The brief facts as stated in the affidavit, are as below:
The Company Petition was purportedly filed by JIL before this Tribunal on 17.04.2025. Thereafter, the Petition was listed before this Hon'ble Tribunal on 29.04.2025. On the date of hearing, the counsel for JHL raised issue of maintainability of the Company Petition, on the reasons mentioned in the reply to the Demand Notice issued by JHL on 30.03.2025, coupled with fact of a pre-existing dispute and also because the Petition was not served on JHL.
Despite being aware that the registered office of JHL is in Gurgaon, Haryana (and hence within the jurisdiction of this Tribunal and not New Delhi), JIL filed a company petition before the NCLT, New Delhi Bench. The fact that JIL/Operational Creditor was in the knowledge of the registered address of JHL being in Haryana is demonstrated from the Demand Notice dated 18.03.2025 issued by JIL/Operational Creditor to JHL, followed by the address in the memo of parties of the earlier Delhi C.P. being identified as Haryana by JIL/Operational Creditor itself.
The service and filing of the earlier C.P, before NCLT, New Delhi Bench is intentional on the part of Operational Creditor and appears to be deliberately done to mislead and distract the attention of the Respondent. The Operational Creditor filed the earlier C.P. before NCLT, New Delhi Bench so that the Respondent tracks the listing of the earlier C.P. before the New Delhi Bench and the present Company Petition filed before this Tribunal goes unnoticed till the time the notice is not issued.
iv.The malafide of the Operational Creditor is further evident from the fact that the present Petition filed before this Tribunal was not served on JHL in advance as per Rule 6 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The present Company Petition was served only on 29.04.2025, after the directions passed by this Tribunal on 29.04.2025. Such brazen attempt of the Operational Creditor to misguide the registry as well as this Bench is nothing short of fraud as this is an intentional conduct and intentional action of the Operational Creditor which cannot be excused as being a mere mistake or defective filing.
v.It is also suspicious that while the present Company Petition was served on 29.04.2025 by JIL/Operational Creditor, with an alleged service email dated 31.03.2025 and with a time stamp of 5:49 pm, the Earlier Delhi C.P. was also served on the same date with the same time stamp i.e., 31.03.2025 at 5:49 pm. Then clearly both the petitions in different jurisdictional benches were served on 31.03.2025. In any event, it is for JIL/Operational Creditor to demonstrate that the present Company Petition was served on JHL as per its email service record annexed to the present Company Petition at pg. 181, in the absence of which, the present Company Petition cannot be accepted by this Bench. JHL, on the other hand maintains during oral arguments that the present Company Petition was not served on JHL on 31.03.2025 and in fact was not served till this Tribunal's directions on 29.04.2025.
vi.Further, as per the order of this Tribunal dated 29.04.2025, the counsel for Operational Creditor ought to have filed 'proof of taking back the earlier application before NCLT, Delhi Bench'. This, however, has been conveniently overlooked and deliberately sidestepped by JIL/Operational Creditor. JIL/Operational Creditor has merely placed on record certain correspondence with the registry and an order passed by the Registrar, regarding the alleged 'withdrawal' and that too without any proof of prior withdrawal either before the filing of the present Company Petition or before the listing of the present Company Petition before this Tribunal. In any event, the documents annexed to JIL's Additional Affidavit, - simply pertain to non-registration of the earlier C.P. due to non-clearance of defects marked by the registry. The said correspondence and order is after the listing of the present Company Petition before this Tribunal and in any event is irrelevant since it does not evidence the withdrawal of the earlier C.P.
vii.The email dated 02.05.2025 sent by the registry to counsel for Operational Creditor was only pursuant to a request by counsel for Operational Creditor wherein the counsel requested for a confirmation that the Earlier Delhi C.P. has not been registered before the NCLT, New Delhi Bench. From a bare perusal of the email dated 02.05.2025 and the order passed by the Registrar dated 02.05.2025, it is evident that the Earlier Delhi C.P. has neither been taken back nor withdrawn from the NCLT, New Delhi Bench. Rather, the Earlier Delhi C.P. has been rejected and 'archived' by the registry since the counsel for Operational Creditor failed to clear the defects.
viii.The non-clearance of defects from the Earlier Delhi C.P. has led the registry not to register the same. Non-registration of a petition due to non-clearance of defects is distinct from withdrawal of a petition due to wrong jurisdiction. Pertinently, the e-filing status on the NCLT portal still shows the Earlier Delhi C.P. to be Under Refiling'. A screenshot of the e-filing portal is annexed with the affidavit as Annexure - C. In any event, as per Rule 8 of the IBBI (Application to Adjudicating Authority) Rules, 2016, only the NCLT is entitled to permit withdrawal of the Earlier Delhi C.P. filed by Operational Creditor before NCLT, New Delhi Bench. Therefore, the submission made by the counsel for Operational Creditor on 29.04.2025 that the Earlier Delhi C.P. had been withdrawn was incorrect as no steps prior to 02.05.2025 had been taken by the Operational Creditor in this regard. In the absence of a formal order by NCLT, New Delhi permitting the withdrawal, the Earlier Delhi C.P. cannot be said to have been withdrawn or taken back.
ix.The Operational Creditor has misused the filing documents and re-filed the same documents before this Tribunal by tampering with/altering/doctoring the documents. In the Additional Affidavit, the Operational Creditor has admitted that 'the Operational Creditor has refiled the same Application as earlier erroneously filed with the NCLT New Delhi Bench'. However, the fraud played by the Operational Creditor, as detailed below, is so evident that it cannot go unnoticed. The Operational Creditor has blatantly abused the process of law by tampering with original notarised documents in utter disregard to the sanctity of judicial proceedings.
x.Further, the affidavit accompanying the section 9 petition as well as the affidavit under section 9 (3) (b) of the IBC, as filed before NCLT, New Delhi Bench and this Tribunal, both have been executed and notarised in Noida on 29.03.2025. Further, the said affidavits bear the notarial stamp of Mr. Prem Prakash, Notary Public, G B Nagar. From a bare comparison of the affidavits filed before NCLT, New Delhi Bench and this Tribunal, it appears that the same affidavits, which were notarised in Noida on 29.03.2025, have been used for filing the present Company Petition albeit by changing the heading. Therefore, it appears that the affidavits have been tampered/doctored to change the heading whilst the remaining contents and notarial stamps remain the same.
xi.Since the affidavits were notarised in Noida (falling within the territorial jurisdiction of Allahabad High Court), the Allahabad High Court rules will apply. As per Rule 18, Chapter IV of the Allahabad High Court Rules, 1952, no interlineation, alteration or erasure is permitted in an affidavit after it has been sworn. Further, since the affidavits were notarised for the purpose of filing the Earlier Delhi C.P. before NCLT, New Delhi Bench, the same affidavits cannot be altered and thereafter used for filing the present Company Petition before this Tribunal. Therefore, JIL has attempted to play a fraud on not only this Hon'ble Tribunal but also on the Notary Public who attested the affidavits.
xii.Further, on comparison between the vakalatnama(s) filed in the Earlier Delhi C.P. and in the present Company Petition, it appears that the original vakalatnama, as executed by the authorised representative of JIL, has been tampered with/doctored to refile the same before this Tribunal. The vakalatnama at pg. 180 of the Earlier Delhi C.P. bears two court fee stamps and one advocate's welfare stamp. The numbers on such stamps are: (i)DLCT0114200B25570 (ii)DLCT0306545B2559N (iii)1819043 This vakalatnama is executed in Delhi, apparently for the NCLT, New Delhi filing and as such all the stamps are of Delhi. However, the vakalatnama at pg. 180 of the present Company Petition is same as the one filed in the Earlier Delhi C.P. Therefore, both the vakalatnamas bear the very same court fee stamps and advocate's welfare stamp.
xiii.It is highly questionable as to how the vakalatnama filed before this Tribunal continues to have the same stamps as those filed before the NCLT, New Delhi Bench. It appears that the Operational Creditor has tampered with and doctored the original vakalatnama to change the heading/place of filing to Chandigarh, whilst the remaining contents and stamps remain the same. Further, Rule 22 of the NCLT Rules, 2016 provide that every interlineation, eraser, correction or deletion in any petition, application or document shall be initialled by the party or his authorised representative. However, in the present case, the alterations made in the Affidavits and Vakalatnama filed in the present Company Petition have not been initialled by the authorised representative of the Operational Creditor.
xiv.In light of the above, it is clear that the Operational Creditor has maliciously altered/doctored and tampered with the original documents before re-filing the same in the present Company Petition. This act of tampering with affidavits and vakalatnama goes to the root of the filing and makes the filing non-est and unsustainable in the eyes of law.
During the course of hearing before this Tribunal on 15.05.2025, counsel for the petitioner stated that he may be permitted to withdraw the present petition with liberty to file the same with better particulars. On the other hand, Senior Counsel for respondent stated that the present petition cannot be withdrawn rather it should be dismissed. Thereafter, on request of both the parties, vide order dated 15.05.2025, time was granted to file a two-page short note with relevant case laws.
In compliance of the above order, the Petitioner has filed written submissions vide diary no 01054/4 dated 22.05.2025, which are briefly summarized as below:
i.The Petitioner seeks permission to withdraw the Section 9 petition, to ensure compliance with procedural requirements. The Corporate Debtor’s objections to this withdrawal before issuance of notice, is legally untenable. The legal position is well settled that withdrawal before issuance of notice is a lis between the Court and the Applicant, and the Respondent/Defendant has no locus. Reliance is placed on Para 132 of the Judgment dated 29.09.2021 of Hon’ble National Company Law Appellate Tribunal (NCLAT) in Ambadi Investment Ltd Vs M V Valli Murugappan Company Appeal (AT) (CH) No. 54 of 2021.
ii.Further with regard to service of petition to the Corporate Debtor, it is stated that the Petitioner filed the Petition before this Tribunal on 17.04.2025. The Corporate Debtor was duly informed about the filing through advance service of an affidavit on 21.04.2025. The due service of the affidavit demonstrates the bonafides of the Applicant in informing the Corporate Debtor about all filings.
iii.With regard to withdrawal of earlier CP it is stated that, the Petition filed before the Hon’ble NCLT Delhi was never registered, and as evident from the communication of the Registrar, it was declined registration. In the absence of registration, there is no stage for withdrawal of the petition, as a petition can only be withdrawn after registration.
iv.With regard to tampering of documents, it is stated that it is a matter of bonafide error on the part of the Applicant. There is no deliberate falsehood in the affidavit and vakalatnama filed with this Tribunal. The filing of the Petition before NCLT Delhi was through the e-filing portal, where the soft copy of the pleadings is scrutinized for defects. Only after clearing the defects is the original set of documents required to be submitted to the Registry. Therefore, the original set of documents, including the affidavit and vakalatnama, was never filed before the NCLT Delhi Bench and remained in the possession of the Petitioner.
In compliance this Tribunal’s order dated 15.05.2025, the respondent has filed a short note vide diary no 01054/5 dated 22.05.2025, wherein besides reiterating the facts stated in the counter affidavit filed earlier, the respondent has placed reliance upon S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 and Vijay Syal v. State of Punjab, (2003) 9 SCC 401.
FINDINGS AND ORDER
We have heard the learned counsel for the parties and perused the petition, the reply affidavit filed by the Corporate Debtor, the additional affidavit filed by the Operational Creditor, and the documents placed on record.
From the perusal of records it is noted that, the Operational Creditor, JIL, has filed the present petition by tampering with and altering judicial documents attached to the Earlier Delhi C.P. The Operational Creditor has re-used the same documents and there are interpolations of documents for filing before this Bench. The vakalatnama filed before this Bench seems identical to the one filed in the Earlier Delhi C.P., including the court fee and advocate welfare stamp numbers—indicating that the original vakalatnama was tampered with by changing only the filing forum details. This raises serious questions about the authenticity and legality of the documents submitted. The Operational Creditor’s conduct is not in accordance with law & the rules prescribed, whether by tampering with documents or by preparing and executing documents simultaneously for two different Benches. The said court fee stamps of NCLT Delhi and advocate welfare stamps which are affixed at vakalatnama (at page 180 of the present petition) are reproduced as below:
The conduct of the Operational Creditor in first initiating proceedings before a forum lacking jurisdiction despite knowing that the registered office of the Corporate Debtor (JHL) lies within the jurisdiction of this bench and subsequently seeking to bring on record the Notice of Dispute and other additional documents through affidavits, reflects procedural lapses which affect the technical maintainability of the application.
Further the affidavits filed in both proceedings—before the New Delhi and Chandigarh Benches—bear identical dates (29.03.2025), the same notarial stamp, and were executed in Noida. A comparison reveals that only the heading of the affidavits appears to have been changed, suggesting that the same documents were doctored to fit the new filing. This amounts to tampering and fabrication of documents, a serious procedural impropriety violating the extant rules.
JIL has failed to disclose the filing of the earlier Delhi Company Petition in the present Chandigarh petition, thereby suppressing material facts. As held in S.P. Chengalvaraya Naidu(Supra), suppression of material facts constitutes fraud, and any benefit derived from such suppression must be denied. Moreover, JIL served the present petition on JHL only after directions of this Tribunal on 29.04.2025, violating Rule 6(2) of the IBC Adjudicating Authority Rules, 2016, which mandates advance service before filing. This also raises serious questions about the authenticity and credibility of JIL's actions.
The cumulative conduct of JIL—forum shopping, suppression of prior filing, non-compliance with mandatory service rules, and document tampering—renders the petition legally untenable. Courts have repeatedly held that those who approach the court must do so with clean hands, as reiterated by Hon’ble Supreme Court in Dalip Singh v. State of U.P., (2010) 2 SCC 114. Given these procedural lapses, the present petition is vitiated and must be dismissed in limine with exemplary costs for abuse of the IBC framework.
In view of the above observations, this Tribunal is of the considered opinion that the petition is liable to be rejected. Accordingly, the petition bearing CP(IB).No.125/Chd/Hry/2025 filed by the Operational Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 is dismissed, and disposed of, without any orders as to cost.