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TMI Blog2017 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ELHI] - Application dismissed. - Company Appeal (AT) (Insolvency) No. 133 of 2017 And Company Appeal (AT) (Insolvency) No. 197 of 2017 - - - Dated:- 2-11-2017 - Mr. Bansi Lal Bhat And Mr. S.J. Mukhopadhaya, JJ. For The Appellants : Shri Arun Kathpalia, Senior Advocate with Ms. Pooja M. Saigal, Ms. Khyati Sharma and Shri R. Sridharan, Advocates For The Respondents : Shri Rajshekhar Rao, Ms. Ranu Purohit and Shri Chaitanya Puri, Advocates JUDGEMENT SUDHANSHU JYOTI MUKHOPADHAYA, J. In both these appeals, as common order is under challenge and common question of law is involved, they were heard together and disposed of by this common judgement. 2. Respondents Rio Glass Solar SA (Operational Creditor), a company incorporated under the laws of Spain, preferred an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) seeking to set in motion the Corporate Insolvency Resolution Process against the appellant Shriram EPC Limited Corporate Debtor 3. Learned Adjudicating Authority (National Company Law Tribunal), Division Bench, Chennai, by the impugned order dated 10th August, 2017 in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 person signing 30. From bare perusal of Form-3 and Form-4, read with sub-rule (1) of Rule 5 and Section 8 of the I B Code, it is clear that an Operational Creditor can apply himself or through a person authorised to act on behalf of Operational Creditor. The person who is authorised to act on behalf of Operational Creditor is also required to state his position with or in relation to the Operational Creditor , meaning thereby the person authorised by Operational Creditor must hold position with or in relation to the Operational Creditor and only such person can apply. 31. The demand notice/invoice Demanding Payment under the I B Code is required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent- Operational Creditor was not maintainable. 9. The other plea taken by the learned senior counsel for the appellant is that the application under Section 9 in Form-5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as Adjudicating Authority Rules ) has not been signed by the Operational Creditor , but by the Power of Attorney holder . Reliance has been placed on Form-5 enclosed at Page 206, which has been signed by four Advocates , as is apparent from Serial Nos. 6 and 7 of the said Form, as quoted below : 6. NAME, ADDRESS AND AUTHORITY OF PERSON SUBMITTING APPLICATION ON BEHALF OF OPERATIONAL CREDITOR (ENCLOSE AUTHORISATION) M/s. S.R. RAJAGOPAL, S.R. RAGHUNATHAN, ROHAN RAJASEKARAN AND PREETHI, S. ARAS, Advocates Having Office at : New No. 18, Old No. 9, Sadasivam Street Gopalapuram, Chennai 600086. Vakalatnama filed as Annexure VII; 7. NAME AND ADDRESS OF PERSON RESIDENT IN INDIA AUTHORISED TO ACCEPT THE SERVICE OR PROCESS ON ITS BEHALF M/s. S.R. RAJAGOPAL, S.R. RAGHUNATHAN, ROHAN RAJASEKARA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate Tribunal in Smart timing Steel Ltd. Vs. National Steel and Agro Industries Ltd. - Company Appeal (AT) (Insol) No. 28 of 2017. The Appellate Tribunal by its judgement dated 19th May 2017 while held that certificate from the 'Financial Institution' maintaining accounts of the 'Operational Creditor' confirming that there is no payment of unpaid operational debt by the 'Corporate Debtor', as prescribed under clause (c) of sub-section (3) of Section 9 of the 'I B Code' mandatory, observed and held as follows: - 11. On perusal of entire Section (3) along with sub-sections and clauses, inclusive of proviso, it would be crystal clear that, the entire provision of sub-clause (3) of Section 9 required to be mandatorily followed and it is not empty statutory formality. 12. Sub-section (2) stipulates filing of an application under Section (1) only in the form and manner and accompanied with such fees as may be prescribed. The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 (hereinafter referred to as 'Adjudicating Authority Rules 2016' for short) are also enacted in exercise of the power conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the statute are clear, plain and unambiguous. In such case, effort must be to give a meaning to each and every word used by the legislature and it is not sound principle of construction to brush aside words in statute as being redundant or surplus, and particularly when such words can have proper application in circumstances conceivable within the contemplation of the statute. 16. For determination of the issue whether a provision is mandatory or not, it will be desirable to refer to decision of Hon'ble Supreme Court in State of Mysore Vs. V.K.Kangan (1976)2 SCC 895. In the said case, the Hon'ble Supreme Court specifically held: 10. In determining the question whether a provision is mandatory or directory, one must look into the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. The determination of the question whether a provision is mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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