2017 (11) TMI 1899 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - issuance of demand notice of unpaid operational debt by advocate of Operational Creditor - section 8(1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - In the instant case the advocate of the operational creditor has issued a notice under section 8(1) of the Insolvency and Bankruptcy Code, 2016 and the same is not in the format as prescribed. Further, no authority of the board of directors for issue of the aforesaid notice was also submitted, in the absence of the same we are of the considered view that the present case of the operational creditor is covered by the decision in UTTAM GALVA STEELS LIMITED VERSUS DF DEUTSCHE FORFAIT AG ANT. 2017 (8) TMI 1198 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI and we have no other option but to reject the petition of the operational creditor. It was held in the case of UTTAM GALVA STEELS LIMITED that the notice issued by the lawyer on behalf of the Respondents can not be treated as a notice under section 8 of the I B Code and for that the petition under section 9 at the instance of the Respondents against the Appellant was not maintainable. Petition rejected as the same is incomplete.

Summary

Issues Involved:
1. Application under Section 9 of the Insolvency and Bankruptcy Code, 2016.
2. Non-payment of outstanding dues by the corporate debtor.
3. Validity of the demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016.
4. Compliance with Section 9(c) of the Insolvency and Bankruptcy Code, 2016.
5. Authority to issue the demand notice.

Issue-wise Detailed Analysis:

1. Application under Section 9 of the Insolvency and Bankruptcy Code, 2016:
The petitioner, Crompton Greaves Consumer Electricals Ltd., filed an application under Section 9 of the Insolvency and Bankruptcy Code, 2016, due to non-payment of ?34,42,005.57 by the corporate debtor. The application was supported by rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

2. Non-payment of outstanding dues by the corporate debtor:
The corporate debtor placed a purchase order on July 25, 2014, for industrial light fixtures, and the operational creditor supplied the materials as per the order. Despite repeated reminders and legal notices, the corporate debtor failed to pay the outstanding amount of ?34,42,005.57. The operational creditor provided detailed invoices and reminders, but the corporate debtor did not respond constructively.

3. Validity of the demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016:
The corporate debtor argued that the notice issued under Section 8 of the Insolvency and Bankruptcy Code, 2016, was defective. The Tribunal observed that the notice was not in the prescribed format and was issued by an advocate without proper authority from the board of directors of the operational creditor. The Tribunal relied on the judgment in Uttam Galva Steels Ltd. v. DF Deutsche Forfait AG, which emphasized that a demand notice must be issued by an authorized person holding a position with or in relation to the operational creditor.

4. Compliance with Section 9(c) of the Insolvency and Bankruptcy Code, 2016:
The corporate debtor contended that the application was defective as it did not include a certificate from a financial institution confirming the non-payment of the operational debt. The Tribunal found this argument factually incorrect, as the operational creditor had submitted a letter from ICICI Bank confirming that no payments had been received from the corporate debtor since July 7, 2016.

5. Authority to issue the demand notice:
The Tribunal noted that the demand notice was issued by an advocate without proper authorization from the board of directors of the operational creditor. The Tribunal held that in the absence of such authority, the notice could not be considered valid under Section 8 of the Insolvency and Bankruptcy Code, 2016.

Conclusion:
The Tribunal concluded that the application was incomplete due to the defective demand notice and the lack of proper authorization for issuing the notice. Consequently, the Tribunal rejected the company petition bearing C.P. (IB) No. 177/9/HDB/2017 under Section 9 of the Insolvency and Bankruptcy Code, 2016.