9911796707
TMI Blog2020 (1) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... n on behalf of the operational creditor - HELD THAT:- The instant petition is filed by one Mr. Paresh Waskar, who is working as a Dy. Manager in the applicant company. The petitioner has not furnished any document authorising Mr. Paresh Waskar to initiate insolvency proceedings against the respondent company. It is to be noted that the company being juristic person can only act through an Authorised Representative . Form No. 5 mandates to submit name and address of the person authorised to submit application on its behalf . The authorisation letter is required to be enclosed. The signature block of the aforementioned Form No. 5 also provides for authorised person's details is to be inserted and also included, inter alia, the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han reorganisation and/or insolvency resolution of corporate persons, partnership firms and individuals, in a time bound manner for maximisation of value of assets which is the objective of the I B Code - One must keep in mind that Insolvency Bankruptcy Code is not a recovery process. Recovery is an individual effort by a creditor to recover his dues through a process that has debtor and creditor on opposite sides. In fact, the I B Code prohibits and discourages recovery in several ways. The insolvency code cannot be used for extraneous consideration or as a substitute for debt enforcement procedure, when it requires further investigation. There is/are no merit in the application, rather the same is filed with malicious intent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... WR02, Soluble Salt-CTD 415 Dark Brown, soluble sale-CTD 629 green, SF powder, HR Flux etc. 4. The applicant/operational creditor has stated that the corporate debtor had placed oral purchase orders of Frit to be applied on vitrified tiles such as Anti-stain compound, Hi Gloss WR02, Soluble Salt-CTD 415 Dark Brown, soluble sale-CTD 629 green, SF powder, HR Flux etc. on the applicant and pursuant to the said purchase orders, the operational creditor had supplied required goods. That, the said material was delivered and accepted without any protest by the corporate debtor and the operational creditor accordingly raised various invoices, copies of which are annexed to the application. 5. It is further stated by the operational creditor t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 on 31-7-2018 to which the corporate debtor gave a vague reply neither showing any specific details regarding payment nor raising any dispute. 9. In support of its claim, the operational creditor has annexed to the application copy of all related documents like copy of invoices, demand notice, e-mail communication, ledger account maintained by the operational creditor, detailed working of the outstanding amount etc. 10. The respondent/corporate debtor filed affidavit in reply inter alia raising the following objections:- (i) the instant application is not maintainable as there is no authorisation in favour of the person who has initiated the present proceedings from inception on behalf of the operational creditor; (ii) the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant. Thus it is clear that only an authorised person as distinct from power of attorney holder can make an application. In the instant application no authorisation is filed. That apart, even Board Resolution is not there. Hence, on this ground itself the application is not maintainable. 14. In the case of State of U.P. v. Babu Ram Upadhyay AIR 1961 SC 751, the Hon'ble Apex Court has held that when a statute requires a thing to be done in a particular manner, it can be done in that manner or not at all. All other methods are forbidden . 15. The second objection raised by the respondent is that the claims made are barred by limitation. On perusal of the record it is found that the instant application is filed on 20th Nov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim/right to be time barred. Thus, on this count also it finds that the application is bad and fit for dismissal. 18. Further, on perusal of the record i.e. Form No. 5 it is found that date of default and due date are not given. Thus, form 5 i.e. application itself is incomplete and deserves to be rejected. 19. On perusal of the records, prima facie, it appears that the applicant has given misleading information in the claim which tantamount to fraudulent or malicious initiation of proceeding. For the sake of brevity, section 65 of I B Code is reproduced hereunder:- 65 Fraudulent or malicious initiation of proceedings - (1) If, any person initiates the insolvency resolution process or liquidation proceedings fraudulently or w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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