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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 ..... 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 CP/537/(IB)/CB/2017, admitted the application, ordered Moratorium, appointed 'Interim Resolution Professional' with order of prohibition in terms of I&B Code against which the appellant-'Corporate Debtor' preferred one of this appeal (Company Appeal (AT) (Insolvency) No. 133 of 2017). 4. Other appeal (Company Appeal (AT) (Insolvency) No. 197 of 2017) has been preferred against the same order dated 10th August, 2017 passed in CP/537/(IB)/CB/2017 by the other aggrieved person. 5. Learned counsel for the appellants submitted that the application under Section 9 of the I&B Code was not maintainable for different reasons. According to him, the demand notice under sub-Section (1) of Section 8 was not given by the respondent -'Operational Creditor' but through Advocate/Lawyers' Firm, which is not permissible. Reliance has been placed on the decision of this Appellate Tribunal in "Uttam Galva Steels Limited Vs. DF Deutsche Forfait AG & Anr."- Company Appeal (AT) (Insolvency) No. 39 of 2017, wherein this Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be issued in Form-3 or Form-4. Through the said formats, the 'Corporate Debtor' is to be informed of particulars of 'Operational Debt', with a demand of payment, with clear understanding that the 'Operational Debt' (in default) required to pay the debt, as claimed, unconditionally within ten days from the date of receipt of letter failing which the 'Operational Creditor' will initiate a Corporate Insolvency Process in respect of 'Corporate Debtor', as apparent from last paragraph no. 6 of notice contained in Form - 3, and quoted above. Only if such notice in Form-3 is served, the 'Corporate Debtor' will understand the serious consequences of non-payment of 'Operational Debt', otherwise like any normal pleader notice/Advocate notice, like notice under Section 80 of C.P.C. or for proceeding under Section 433 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai 600086. Vakalatnama filed as Annexure VII 10. The question whether a 'Power of Attorney holder' can file an application for initiation of 'Corporate Insolvency Resolution Process' fell for consideration before this Appellate Tribunal in "Palogix Infrastructure Limited Vs. ICICI Bank Limited"-Company Appeal (AT) (Insol.) No. 30 of 2017. Therein this Appellate Tribunal by judgement dated 20th September, 2017 held : "32. The 'I&B Code' is a complete Code by itself. The provision of the Power of Attorney Act, 1882 cannot override the specific provision of a statute which requires that a particular act should be done by a person in the manner as prescribed thereunder. 33. Therefore, we hold that a 'Power of Attorney Holder' is not competent to file an application on behalf of a 'Financial Creditor' or 'Operational Creditor' or 'Corporate Applicant'." 11. In the present case, as the application under Section 9 has been signed and filed by 'Power of Attorney holders' for the said reason also, we hold that the application under Section 9 preferred by the Respondent- 'Operational Creditor' was not maintainable. 12. The next plea taken by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed by filing an application by corporate insolvency resolution process. As per Rule 6 of the 'Adjudicating Authority' Rules 2016, an operational creditor shall make an application for initiating the corporate insolvency process under section 9, in Form 5 accompanied with documents and records required therein. As per sub-rule (2) of Rule 6 it is mandatory again to dispatch a copy of application filed with the adjudicating authority, by registered post or speed post to the registered office of the Corporate Debtor. 13. The provisions of sub-section (3) mandates the operational creditor to furnish copy of invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor, an affidavit to the effect that, there is no notice given by the corporate debtor relating to dispute of unpaid operational debt, a copy of the certificate from the 'Financial Institutions' maintaining accounts of the operational creditor confirming that, there is no payment of an unpaid operational debt by the corporate debtor and such other information as may be stipulated. Sub-section (5) of section 9 is procedure required to be followed by Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o by considering its nature, its design and the consequences which would follow from construing it in one way or the other. 16. Therefore, it is clear that the word 'shall' used in sub-section (3) of section 9 of 'I & B Code' is mandatory, including clause 3 therein." 15. Learned counsel appearing on behalf of the respondent has also not disputed the aforesaid fact that the Report of M/s. CaixaBank is not recognised and any other record of default has not been enclosed by the respondent. For the said reason also, the impugned order cannot be upheld. 16. In view of the finding recorded above, we set aside the impugned order dated 10th August, 2017 passed by learned Adjudicating Authority in CP/537/(IB)/CB/2017. 17. In effect, order (s), if any, passed by Ld. Adjudicating Authority appointing any 'Interim Resolution Professional' or declaring moratorium, freezing of account and all other order (s) passed by Adjudicating Authority pursuant to impugned order and action, if any, 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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