Diamond Engineering (Chennai) vs Shah Brothers

For Appellants: Shri A.K. Mylasamy, Senior Advocate assisted by Ms. Shalini Kaul, Advocate

For Respondent: Shri S. N. Mookherjee, Senior Advocate assisted by Shri Pritha Srikurnar Iyer, Shri Sulabh Rewari, Advocates

V ORDER

27.07.2017 This appeal has been preferred by the appellant - 'Corporate

Debtor' against the order dated 6th June, 2017 passed by the learned

Adjudicatory Authority (National Company Law Tribunal), Chennai whereby and

whereunder the application preferred by the respondent - 'Operational Creditors'

under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as 'I&B Code') for initiation of resolution against the 'Corporate

Debtor' has been admitted, order of moratorium has been passed and the matter

has been referred under Section 14 of the I & B Code for appointment of an 2

'Interim Resolution Professional' with further prohibitory order(s) as made

therein.

2. Learned counsel appearing on behalf of the appellant submitted that the

bills on the basis of which default was claimed by the respondent - 'Operational

Creditor', are forged and fabricated documents. On the basis of forged

document, no claim can be entertained under Section 9 of the I & B Code.

However, from the record, we find that no such, objection was made by the

appellant, prior to receipt of Notice under Section 8 of the I & B Code.

3. The other ground taken by the appellant is that the person who signed

'Form 3 and Form 5', as prescribed in I&B Code (application to Adjudicatory

Authority) under Rules, 2016 for issuing notice under Section 8 or filing

application under Section 9 of the I&B Code, has not been signed by 'authorised

person' authorised by the Board of Directors. However, in reply to such averment

the respondents have shown that apart from the fact that a decision was taken

by the respondent company to contest the case, the person who signed the notice

in the Form3 and Form 5 is one of the Director of the 'operational creditor'

(respondent company). From the provisions of the law, including Form 3 and

Form 5, we find that any person who is authorised and having relation to the

company is entitled to issue notice under Section 8 of the I&B Code and is also competent to file an application under Section 9. In such circumstances, the

person, who has signed the notice under Section 8 and filed the petition under

Section 9 being the Director of the Company and having authorised by the Board

of Directors or the-company, no interference is called for.

4. Learned counsel for the appellant next submitted that no proper bank

certificate was filed by the respondent but such plea having not taken by the

appellant before the Learned Adjudicating Authority, we are not inclined to

notice any new plea. We find no merit in this appeal. It is accordingly

dismissed.

[Justice S.J. Mukhopadhaya} Chairperson

[Balvinder Singh] Member (Technical)