TaxTMI 
TaxTMI 
2017 (11) TMI 943
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.... Delhi in CP No.16/2017. By the impugned order, the Adjudicating Authority treating the Transfer Petition under Section 434 (1)(a) as a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I&B Code) admitted the application, initiated Corporate Insolvency Resolution Process, declared moratorium and appointed Interim Resolution Professional with other directions in accordance to the I&B Code. 2. On 25th July, 2017 when the matter was taken up, the learned counsel for the corporate debtor made submission, as recorded below: "Learned counsel for the appellants submits that no separate notice was issued by the Learned Adjudicating Authority on the appellant. Whatever discussion about the n....
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....untant or Company Secretary. This Appellate Tribunal by its Judgement dated 28th July 2017 held as follows: "30. 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 can apply. 31. The demand notice/invoice Demanding Payment under the I&B ....
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....'s notice' as distinct from notice to be given by operational creditor in terms of section 8 of the I&B Code." 6. In the present case as an advocate/lawyer has given notice under Section 8 and there is nothing on record to suggest that the Advocate/lawyer has been authorised by 'Board of Directors' of the Respondent - 'Sunflag Iron & Steel Co. Ltd.' to do so, and there is nothing on record to suggest that the Advocate/lawyer hold any position with or in relation with the Respondent, we hold that the notice issued by the Advocate/lawyer on behalf of the Respondent cannot be treated as a notice under section 8 of the I&B Code. For the said reason, the petition under section 9 at the instance of the Respondent against the Ap....
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....s required to afford reasonable opportunity of hearing to the Corporate debtor before passing its order." 9. In view of the fact that notice under sub-section (1) of Section 8 was issued by an advocate and not by the Respondent and that the appellant was not given a proper opportunity by the Adjudicating Authority before passing of the impugned order and the impugned order was passed in violation of the rules of natural justice, the impugned order cannot be upheld. We accordingly set aside the impugned order dated 24th May 2017 and dismiss the CP No.16/2017 preferred by the respondent, operational creditor. 10. In the result, the appointment of Interim Resolution Professional, order declaring moratorium, freezing of account and all ot....