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TMI Blog2022 (4) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority (National Company Law Tribunal, Mumbai Bench), M/s.Software One India Private Limited/Operational Creditor preferred this Appeal under Section 61 of the Insolvency & Bankruptcy Code, 2016 (Hereinafter referred to as the 'Code'). By the Impugned Order, the Adjudicating Authority has dismissed the Application preferred under Section 9 of the Code on the ground that the Appellant herein was not authorised to initiate CIRP on the date of issuance of Notice and, therefore, by ratification of the Board Resolution, Notice issued under Section 8 of the Code cannot be validated. While dismissing the Application, the Adjudicating Authority has observed as follows: "9.Ld. Counsel has relied on the case law Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner states that Ms. Meetu Bajaj has got authority for initiation of CIRP retrospectively. Since the proceedings/notice under Section 8 was issued without authority, even if we consider that Ms. Meetu Bajaj has been authorized for initiation of CIRP retrospectively, then demand notice under Section 8 is necessary and if the Corporate Debtor fails to make payment then only Petition under section 9 can be filed. 13. In this case, the Petitioner was not authorized to initiate CIRP on the date of issuance of notice and therefore, by ratification of Board Resolution, Notice under Section 8 of the IB Code cannot be validated. Since Notice under Section 8 of IB Code is not valid, Petition under section 9 is not maintainable therefore, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, Palogix Infrastructure Pvt Ltd (Supra) is not applicable to the facts of this case. 3. Submissions of the Learned Counsel appearing on behalf of the Respondent: It is the case of the Respondent that the 'Demand Notice' was raised arbitrarily on the Respondent for which no purchase order was made; that the amount is already paid and that there is an existence of 'dispute'. The Learned Counsel relied upon several judgements with respect to pre-existing dispute as we are not making any observations regarding the merits of the Application, the ratio of the judgements relied upon with respect to the 'disputes', if any, is not being addressed to. The Learned Counsel strenuously contended that there is no specific authorisation for initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing contained in the foregoing paragraph, all acts, deeds and things done, all petitions, affidavits, documents and papers executed, filed or deposed, legal proceedings instituted before the NCLT/NCLAT/High Court/Supreme Court by the person(s) aforementioned with effect from 05th October, 2017 be and are hereby affirmed, ratified and made effect as actions done on behalf of the Company and shall be binding on the Company. v. All acts, deeds and things to be undertaken, all documents and papers to be executed, filed or deposed, legal proceedings to be instituted before the NCLT/NCLAT/High Court/Supreme Court by the person(s) aforementioned shall be construed as actions done on behalf of the Company and shall be binding on the Company." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority." 5. Be that as it may, the aforenoted Minutes of the Meeting of the Board of Directors of Appellant Company dated 29.01.2019 specifies that all actions taken by Ms Meetu Bajaj by way of earlier Resolution dated 05.10.2017 were ratified and she was clearly authorised by the Board of Directors to initiate CIRP under the Code before the NCLT. Therefore, this Tribunal is of the earnest vie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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