2017 (12) TMI 337

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....ed by the Adjudicating Authority (National Company Law Tribunal) Mumbai Bench in C.P. No. 594/I&BP/2017 whereby and where under the application preferred by the respondent - Dolphin Offshore Enterprises (Mauritius) Pvt. Ltd. (hereinafter referred to as 'Operational Creditor') for initiation of 'Corporate Insolvency Resolution Process' has been admitted, order of moratorium has been declared and the Insolvency Bankruptcy Board of India has been requested to recommend the name of an Interim Resolution Professional (IRP). 2. One of the plea taken by the appellant is that the demand notice under sub-Section (1) of Section 8 was not issued by the Operational Creditor but by an advocate on behalf of the 'Operational Creditor', which is not permi....

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....owing documents, namely: - (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4." 29. Clause (a) and (b) of sub-rule (1) of Rule 5 of the 'Adjudicating Authority Rules' provides the format in which the demand notice/invoice demanding payment in respect of unpaid 'Operational Debt' is to be issued by 'Operational Creditor'. As per Rule 5(1) (a) & (b), the following person (s) are authorised to act on behalf of operational creditor, as apparent from the last portion of Form-3 which reads as follows: - 6. The undersigned request you to unconditionally repay the unpaid operational debt (in default) in full within ten days from the receipt of this letter failing which we shall initiate a corporate i....

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....s 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 notice under Section 8. 32. In view of provisions of I&B Code, read with Rules, as referred to above, we hold that an 'Advocate/Lawyer' or 'Chartered Accountant' or 'Company Secretary' in absence of any authority of the Board of Directors, and holding no ....