TaxTMI 
TaxTMI 
2017 (12) TMI 101
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....esolution Process' against the appellant 'Shriram EPC Limited -' Corporate Debtor' 3. Learned Adjudicating Authority (National Company Law Tribunal), Division Bench, Chennai, by the impugned order dated 10th August, 2017 in CP/537/(IB)/CB/2017, admitted the application, ordered Moratorium, appointed 'Interim Resolution Professional' with order of prohibition in terms of I&B Code against which the appellant-'Corporate Debtor' preferred one of this appeal (Company Appeal (AT) (Insolvency) No. 133 of 2017). 4. Other appeal (Company Appeal (AT) (Insolvency) No. 197 of 2017) has been preferred against the same order dated 10th August, 2017 passed in CP/537/(IB)/CB/2017 by the other aggrieved person. 5. Learned counsel for the appellants submitted that the application under Section 9 of the I&B Code was not maintainable for different reasons. According to him, the demand notice under sub-Section (1) of Section 8 was not given by the respondent -'Operational Creditor' but through Advocate/Lawyers' Firm, which is not permissible. Reliance has been placed on the decision of this Appellate Tribunal in "Uttam Galva Steels Limited Vs. DF Deutsche Forfait AG & Anr."- Company Appeal (AT....
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....and only such person can apply. 31. The demand notice/invoice Demanding Payment under the I&B Code is required to be issued in Form-3 or Form-4. Through the said formats, the 'Corporate Debtor' is to be informed of particulars of 'Operational Debt', with a demand of payment, with clear understanding that the 'Operational Debt' (in default) required to pay the debt, as claimed, unconditionally within ten days from the date of receipt of letter failing which the 'Operational Creditor' will initiate a Corporate Insolvency Process in respect of 'Corporate Debtor', as apparent from last paragraph no. 6 of notice contained in Form - 3, and quoted above. Only if such notice in Form-3 is served, the 'Corporate Debtor' will understand the serious consequences of non-payment of 'Operational Debt', otherwise like any normal pleader notice/Advocate notice, like notice under Section 80 of C.P.C. or for proceeding under Section 433 of the Companies Act 1956, the 'Corporate Debtor' may decide to contest the suit/case if filed, distinct Corporate Resolution Process, where such claim otherwise cannot be contested, except where there is an existence of dispute, prior to issue of no....
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...., S.R. RAGHUNATHAN, ROHAN RAJASEKARAN AND PREETHI, S. ARAS, Advocates Having Office at : New No. 18, Old No. 9, Sadasivam Street Gopalapuram, Chennai 600086. Vakalatnama filed as Annexure VII 10. The question whether a 'Power of Attorney holder' can file an application for initiation of 'Corporate Insolvency Resolution Process' fell for consideration before this Appellate Tribunal in "Palogix Infrastructure Limited Vs. ICICI Bank Limited"-Company Appeal (AT) (Insol.) No. 30 of 2017. Therein this Appellate Tribunal by judgement dated 20th September, 2017 held : "32. The 'I&B Code' is a complete Code by itself. The provision of the Power of Attorney Act, 1882 cannot override the specific provision of a statute which requires that a particular act should be done by a person in the manner as prescribed thereunder. 33. Therefore, we hold that a 'Power of Attorney Holder' is not competent to file an application on behalf of a 'Financial Creditor' or 'Operational Creditor' or 'Corporate Applicant'." 11. In the present case, as the application under Section 9 has been signed and filed by 'Power of Attorney holders' for the sai....
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....cise of the power conferred by Clauses (c), (d), (e), (f) of subsection 239 read with sections 7, 8, 9 and 10 of the 'I & B Code'. The rules provide the procedure required to be followed by filing an application by corporate insolvency resolution process. As per Rule 6 of the 'Adjudicating Authority' Rules 2016, an operational creditor shall make an application for initiating the corporate insolvency process under section 9, in Form 5 accompanied with documents and records required therein. As per sub-rule (2) of Rule 6 it is mandatory again to dispatch a copy of application filed with the adjudicating authority, by registered post or speed post to the registered office of the Corporate Debtor. 13. The provisions of sub-section (3) mandates the operational creditor to furnish copy of invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor, an affidavit to the effect that, there is no notice given by the corporate debtor relating to dispute of unpaid operational debt, a copy of the certificate from the 'Financial Institutions' maintaining accounts of the operational creditor confirming that, there is n....