TaxTMI 
TaxTMI 
2017 (11) TMI 892
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....supplied waste paper to the respondent as per the Sales Invoice/Tax Invoice issued from 1.04.2013 to 31.03.2016 (Annexure-E). The Operational Creditor/Applicant (hereafter to be referred as applicant) contents that an amount of Rs. 74,70,165/- (seventy-four lakhs seventy thousand one hundred sixty-five) with interest @18% p.a is due from the respondent and that the total amount with interest as on default due from the respondent is Rs. 92,63,005/- (Ninety-two lakh sixty-three thousand five) The applicant contents that despite repeated demands the respondent failed to repay the debt and therefore filed this application for initiating Insolvency Resolution Process as against the respondent. 3. The applicant filed this application in Form-5 along with copy of demand notice in Form-3 issued by an advocate. The application was filed along with copy of served notice attached to the invoice demanding payment in Form-4, a copy of Bank Statement, a copy of Ledger account, copies of Tax invoices, copy of appointment and authorisation letter dated 04.04.2017 issued to Advocate Mr. Shiv Shankar Banerjee, copy of appointment letter issued to Mr. Tapas Mallik, an IRP, copy of consent letter iss....
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....s the respondent prays for dismissal of the application as not maintainable under section 9 of I&B Code. 5.1 No rejoinder filed by the applicant even if time granted. However by filing an affidavit dated 22.08.2017 the applicant deposed that this Tribunal did not call for any rejoinder as per it's order dated 10.08.2017. On the other hand, vide order dated 02.08.2017 this Tribunal directed the applicant to file rejoinder within 3 days from the date of receipt of reply to be filed by the respondent. The applicant did not file rejoinder as directed. 6. Heard both sides. Upon hearing the argument and on perusal of the records the main points that arises for determination are 1. Whether the advocate who issued the demand notice in Form-3 has got any authority to issue the notice? 2. Whether the dispute raised by the respondent/corporate debtor comes under the definition of section 5(6) of I&B Code, 2016? Point No 1. 7. The demand notice in Form 3 admittedly was issued by Advocate Mr. Ankita Mitra. A reading of the form 3 notice it is understood that (page 7) the advocate was authorised to act on behalf of the operational creditor by one Mr. Laxmi Narayan Shaw. Shaw Traders who is ....
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....ther case Zapp India Ltd. v. Maheshwar Textiles Comp. App. (AT) (Insolvency) No. 157 of 2017, the hon'ble NCALT has also held that: - "From the notice dated 29th May 2017, we find that the demand notice was issued not by the operational creditor but on its behalf by one advocate namely, Saurabh Sharma, who claimed to be the counsel for the operational creditor - Maheshwar Textiles & Anr. Similar issue fell for consideration before this Appellate Tribunal in "Uttam Galva Steels Limited v. DF Deutsche Forfait AG & Anr." (Company Appeal (AT) (Insolvency) 39 of 2017). This Appellate Tribunal by its Judgment dated 28th July 2017 held as follows: "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 c....
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.... challenge raised by the respondent in one among the notices issued by the respondent to the applicant on 15.04.2013 it read as follows: - "We regret to inform you that despite our repeated request regarding quality of waste paper you have continued supplies mixed with lots of dust particles, lifeless, antique, very old waste paper. You are requested to go through the "RAW Materials Quality Analysis report" given against each consignment and issue credit notes in our favour accordingly." (Annexure-A at page 14 in the reply affidavit). In the reply notice issued by the respondent on 23.03.2017 (Annexure G) also very same challenge was raised by the respondent against the supply of the goods received by the respondent. Annexure E is the copy of the notice issued by the applicant under section 271 of the Companies Act, 2013 demanding Rs. 131,20,165/- with interest @ of 18% to the respondent on 12.01.2017. Annexure F is the reply issued by the respondent to the applicant contending that respondent is not able to utilise the waste paper because the paper supplied was unusable waste paper. The contention of the respondent that a dispute in regards the claim of the applicant was raised....
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....ggrieved by the order of rejection the petitioner/Kirusa Software Private Ltd. filed appeal before NCALT, Delhi. The Hon'ble NCALT allowed the appeal. It is good to read paras 39 to 41 in the above said judgment. It read as follows:- "39. In the present case the adjudicating authority has acted mechanically and rejected the application under sub-section (5)(ii)(d) of Section 9 without examining and discussing the aforesaid issue. If the adjudicating authority would have noticed the provisions as discussed above and what constitutes 'dispute' in relation to services provided by operational creditors then it would have come to a conclusion that condition of demand notice under sub-section (2) of Section 8 has not been fulfilled by the corporate debtor and the defence claiming dispute was not only vague, got up and motivated to evade the liability. 40. For the reasons aforesaid we set aside the impugned order dated 27.1.2017 passed by adjudicating authority in CP No. 01/I &BP/NCLT/MAH/2017 and remit the case to adjudicating authority for consideration of the application of the appellant for admission if the application is otherwise complete. 41. The appeal is allowed with the af....