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TMI Blog2017 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI) we have no other option but to set aside the impugned order. In effect, order(s) passed by Adjudicating Authority appointing any ‘Interim Resolution Professional’, declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action taken by the ‘Interim Resolution Professional’, including the advertisement, if any, published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by Respondent under Section 9 of the I&B Code, 2016 is dismissed. - Company Appeal (AT) (Insolvency) No. 158 of 2017 - - - Dated:- 13-10-2017 - Mr. S.J. Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arsiwala, Advocate purported to be demand notice under sub-section (1) of Section 8. Reliance has also been placed on the decision of this Appellate Tribunal in Uttam Galve Steels Limited v. DF Deutsche Forfait AG Anr. in Company Appeal (AT) (Insolvency) 39 of 2017 wherein this Appellate Tribunal held that notice by a lawyer cannot be treated to be a notice under sub-section (1) of Section 8 for the reasons mentioned therein. 4. Learned counsel appearing on behalf of the respondent Financial Creditor submits that the advocate was given a letter of retainership on 10th February, 2017 for initiation of proceedings, civil, criminal and under the I B Code, which reads as follows: LETTER OF RETAINER 10th February 2017 To, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it shall also be your responsibility to initiate any and all legal proceedings required against my debtors. However, it is clarified that the fees for the same may be charged separately by you at mutually agreeable rates. 5. You undertake to perform your duties in an utmost impartial manner and agree to provide your expertise to assist me with my legal disputes. 6. You acknowledge that by virtue of your position, it is extremely likely that you will be exposed to sensitive information relating to my affairs. In this regard you undertake to maintain strict confidentiality of all information provided by me to you, and not disclose the same without my consent. 7. You shall keep the original of this letter of retainer af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per Rule 5(1) (a) (b), the following person (s) are authorised to act on behalf of operational creditor, as apparent from the last portion of Form-3 which reads as follows: - 6. The undersigned request you to unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate insolvency resolution process in respect of [name of corporate debtor]. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33 of the Companies Act 1956, the Corporate Debtor may decide to contest the suit/case if filed, distinct Corporate Resolution Process, where such claim otherwise cannot be contested, except where there is an existence of dispute, prior to issue of notice under Section 8. 32. In view of provisions of I B Code, read with Rules, as referred to above, we hold that an Advocate/Lawyer or Chartered Accountant or Company Secretary in absence of any authority of the Board of Directors, and holding no position with or in relation to the Operational Creditor cannot issue any notice under Section 8 of the I B Code, which otherwise is a lawyer s notice as distinct from notice to be given by operational creditor in terms of section 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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