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2022 (4) TMI 833 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - Service of demand notice - HELD THAT - The Minutes of the Meeting of the Board of Directors of Appellant Company dated 29.01.2019 specifies that all actions taken by Ms Meetu Bajaj by way of earlier Resolution dated 05.10.2017 were ratified and she was clearly authorised by the Board of Directors to initiate CIRP under the Code before the NCLT. Therefore, this Tribunal is of the earnest view that the Adjudicating Authority ought not to have dismissed the Application on such technical grounds. Having regard to the aforenoted Board Resolution dated 29.01.2019 and also the provisions of Section 9 sub-section (5) of the Code, the impugned order is set aside and this Appeal is allowed and the Adjudicating Authority shall decide the Admission/Rejection of the Application as expeditiously as applicable keeping in view that the Application is of the Year 2019. The Registry is directed to upload the Judgement on the website of this Tribunal and send a copy of this Judgement to the Learned Adjudicating Authority (National Company Law Tribunal, Mumbai) forthwith.
Issues:
1. Authorization to initiate CIRP under the Insolvency & Bankruptcy Code, 2016. 2. Validity of the notice under Section 8 of the Code. 3. Application of ratification in legal proceedings. 4. Interpretation of Board resolutions authorizing legal actions. 5. Dispute regarding payment and existence of a purchase order. Issue 1: Authorization to Initiate CIRP under the Insolvency & Bankruptcy Code, 2016: The Appellant challenged the dismissal of their application under Section 9 of the Code by the Adjudicating Authority, arguing that the Board of Directors had authorized Ms. Meetu Bajaj to initiate proceedings under the Code. The Appellant contended that a subsequent resolution expressly authorized Ms. Bajaj to institute proceedings under the IB Code before the NCLT and NCLAT. The Tribunal noted that the Resolution dated 29.01.2019 ratified all actions taken by Ms. Bajaj under the earlier Resolution dated 05.10.2017, thereby authorizing her to initiate CIRP. The Tribunal set aside the impugned order, allowing the Appeal and directing the Adjudicating Authority to decide on the Application promptly. Issue 2: Validity of the Notice under Section 8 of the Code: The Adjudicating Authority had dismissed the Application on the grounds that the Appellant was not authorized to initiate CIRP at the time of issuing the Section 8 notice, rendering the subsequent ratification ineffective. The Tribunal found that the Board Resolution dated 29.01.2019 clarified and ratified Ms. Bajaj's authority to file petitions before the NCLT, thus validating the notice under Section 8. The Tribunal emphasized that technical grounds should not lead to the dismissal of the Application, overturning the Adjudicating Authority's decision. Issue 3: Application of Ratification in Legal Proceedings: The Adjudicating Authority relied on legal precedents to argue that ratification cannot validate an act by an unauthorized authority. However, the Tribunal interpreted the Board resolutions and the principles of ratification differently, emphasizing that the subsequent resolution ratified Ms. Bajaj's actions retrospectively, making them valid. The Tribunal's decision highlighted the importance of ratification in legal proceedings and its retrospective validation of acts. Issue 4: Interpretation of Board Resolutions Authorizing Legal Actions: The Tribunal scrutinized the Board resolutions authorizing Ms. Bajaj's actions and found that the Resolution dated 29.01.2019 provided explicit authorization for her to initiate CIRP proceedings under the Code. The Tribunal differentiated between the Power of Attorney Act and the Companies Act, 2013, emphasizing the Board's power to ratify acts done by a delegate, which was applicable in this case. Issue 5: Dispute Regarding Payment and Existence of a Purchase Order: The Respondent argued that a demand notice was raised arbitrarily without a purchase order, claiming that the amount was already paid and there existed a dispute. The Respondent's Counsel cited judgments related to pre-existing disputes but did not address the merits of the Application. The Tribunal did not make observations on the dispute's merits but focused on the technical aspects of authorization and ratification in the context of initiating CIRP proceedings. In conclusion, the National Company Law Appellate Tribunal, Principal Bench, New Delhi, overturned the Adjudicating Authority's decision, emphasizing the importance of proper authorization and ratification in initiating CIRP proceedings under the Insolvency & Bankruptcy Code, 2016. The Tribunal directed the Adjudicating Authority to reconsider the Application promptly in light of the clarified authorization provided by the Board resolutions.
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