9911796707
TMI Blog2021 (1) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... perational debt of Rs. 6,63,118/- (Rupees six lacs sixty three thousand one hundred and eighteen only) has become due along with interest at the rate of 18% p.a. from 20.08.2016, as per computation of default and amount payable by the Corporate Debtor to the Operational Creditor (ANNEXURE 'G'). Hence this petition is filed under section 9 of Insolvency and Bankruptcy Code, 2016, read with Rule 6 of Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, seeking admission of the petition, initiation of Corporate Insolvency Resolution Process, granting moratorium and appointment of Interim Resolution Professional as prescribed under the Code and Rules thereon. 2. The averments made in the petition are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s failed to complete the full payment of due amount. (Para 4) 2.4 The Operational Creditor has addressed e-mail communications dated 23.11.2016, 12.05.2017, 13.06.2017 and 14.08.2017 (ANNEXURE 'D'), but the Corporate Debtor has failed to make good its debt. Thereafter, the Operational Creditor has issued Demand Letter dated 11.09.2017 (ANNEXURE 'E') to the Corporate Debtor. Finally the Operational Creditor had issued Demand Notice dated 17.08.2019 (ANNEXURE 'F') to the Corporate Debtor. 3. COUNTER DATED 04.02.2020/ 05.02.2020 FILED BY THE CORPORATE DEBTOR. 3.1 At the outset the Corporate Debtor has denied that there is any 'operational debt' as claimed by the Operational Creditor as defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to such dispute? If any one of the aforesaid conditions is lacking, the application would have to be rejected." 4. WRITTEN SUBMISSIONS DATED 22.12.2020/ 23.12.2020 FILED BY THE RESPONDENT/ CORPORATE DEBTOR. 4.1 It is contended that the petition is filed by Power of Attorney Holder vide Power of Attorney at Annexure 'H', without there being specific authorisation for initiation of CIRP. In this context the Corporate Debtor has relied on decision of the Hon'ble NCLAT in the case of PALOGIX INFRASTRUCTURE PVT LTD vs. ICICI BANK LTD., wherein it is held that the Power of Attorney is not competent to file an application on behalf of the Financial Creditor or Operational Creditor or Corporate Applicant. There must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices, services and confirmed the amount claimed by the petitioner. (iii) There is no operational debt under section 4 of the I&B Code. OBSERVATIONS : 5. It is observed that the petitioner/ Operational Creditor though claimed to have entered into Purchase Order dated 25.02.2016 (ANNEXURE 'A') with the respondent/ Corporate Debtor, the petitioner/ Operational Creditor could not produce any documentary evidence to the effect that it had provided AMC services as agreed upon, or any evidence to show that the Corporate Debtor has acknowledged debt or any acknowledgement that the Corporate Debtor has received invoices issued by the Operational Creditor or that the Corporate Debtor has confirmed any debt, in part or full. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not fulfilled in the present case. 9. Furthermore, the petition is filed by Power of Attorney Holder vide Power of Attorney at Annexure 'H', without there being specific authorisation for initiation of CIRP. Thus, institution of the present petition under section 9 of the I&B Code itself is hit by the decision of the Hon'ble NCLAT in the case of PALOGIX INFRASTRUCTURE PVT LTD vs. ICICI BANK LTD. The decision of the Hon'ble NCLAT holds that Power of Attorney Holder is not competent to file an application on behalf of the Financial Creditor or Operational Creditor or Corporate Applicant. There must be a specific authorisation in favour of the person presenting the application. 10. We are therefore, of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
