2017 (12) TMI 337 - AT - Insolvency and Bankruptcy

Corporate Insolvency Resolution Process - authority of advocate issuing notice - Held that - In the present case as the demand notice has been given by an advocate and there is nothing on record to suggest that the advocate in question holds any position with or in relation to the respondent - Dolphin Offshore Enterprises (Mauritius) Pvt. Ltd. and the demand notice has not been issued in mandatory Form 3 or Form 4, as stipulated, under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the initiation of resolution process cannot be upheld. This no other option but to set aside the impugned order.

Summary

Issues:
1. Validity of demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016.
2. Compliance with the provisions of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

Issue 1: Validity of demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016:
The appellant, Director of Corporate Debtor, challenged the order admitting the application for Corporate Insolvency Resolution Process, citing that the demand notice under Section 8 was issued by an advocate on behalf of the Operational Creditor, which is impermissible. The Appellate Tribunal referred to a previous case and emphasized that the demand notice must be delivered by the Operational Creditor or a person authorized to act on their behalf, who holds a position with or in relation to the Operational Creditor. As the advocate did not meet these criteria and the notice was not issued in the prescribed Form 3 or Form 4, the initiation of the resolution process was deemed invalid.

Issue 2: Compliance with the provisions of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016:
The Appellate Tribunal highlighted the importance of following the prescribed formats for demand notices under the Insolvency and Bankruptcy Code. It was noted that the notice must inform the Corporate Debtor of the particulars of the Operational Debt and demand payment within a specified period. Failure to comply with these requirements could lead to serious consequences for the Corporate Debtor, as they would not be able to contest the claim in the Corporate Insolvency Resolution Process. The Tribunal held that only a person authorized by the Operational Creditor, holding a position with or in relation to the Operational Creditor, can issue such a notice under Section 8 of the Code. Therefore, in this case, where the notice was issued by an advocate without the necessary authority or in the prescribed format, the order admitting the application for insolvency resolution was set aside.

In conclusion, the Appellate Tribunal allowed the appeal, set aside the impugned order, declared all subsequent actions illegal, dismissed the application under Section 9 of the Insolvency and Bankruptcy Code, and directed the Adjudicating Authority to close the proceedings. The Corporate Debtor was released from the legal constraints, allowed to function independently, and instructed to pay the fees of the Interim Resolution Professional, if appointed. No costs were awarded in the circumstances of the case.