2017 (10) TMI 1486

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....or) against order dated 6th June, 2017 passed by the Adjudicating Authority (National Company law Tribunal), Ahmedabad Bench, Ahmedabad in CP No. (I.B.) 29/9/NCLT/AHM/2017 whereby and whereunder the application preferred by the respondent (Operational Creditor) under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the, "I&B Code') read with Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 has been admitted, order of moratorium has been passed and the Interim Resolution Professional has been appointed. 2. Learned counsel appearing on behalf of the appellant 'Corporate Debtor' submits that the impugned order dated 6th June, 2017 has been passed by the Adjudicating....

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.... held that it is the duty of the Adjudicating Authority to issue notice and not the party. In this case, Adjudicating Authority directed the contesting party to issue notice, which is not in accordance with law. This apart, in absence of any service of such notice, it was not open to the Adjudicating Authority to admit the application for the said reason, the impugned order dated 6th June, 2016 cannot be upheld. 5. This apart, from the record we find that an advocate's firm Shri Rajeshwer K. Gupta & Co. issued the notice under sub-section (1) of section 8 on behalf of the respondent on 12th March, 2017. Later on another so called notice under subsection( 1) of Section 8 was issued by the same advocate on 18th April, 2017. In both the not....

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....e debtor the following 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....

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....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 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 'C....