M/S Paharpur Cooling Towers Limited vs M/S Ankit Metal & Power Limited

M/s Paharpur Cooling Towers Limited .. Appellant

Versus

M/s Ankit Metal & Power Limited .. Respondent

Present:

For Appellant: Shri Sanjoy Ghosh, Senior Advocate assisted by Shri R. N. Ghosh and Shri Santanu Ghosh Advocates

For Respondent: Shri Susanta Dutta, Shri Bidyut Dutt and Shri Anirudhya Dutta Advocates

ORDER

09.11.2017 This appeal has been preferred by M/s Paharpur Colling

Towers Limited (Operational Creditor) against the order dated 21st August,

2017 passed by the Adjudicating Authority (National Company Law Tribunal,

Kolkata Bench) whereby and whereunder the Adjudicating Authority

dismissed the application under Section 9 of the Insolvency & Bankkruptcy

Code, 2016 (hereinafter referred to as 'I & B Code') on the ground that there

is 'an existence of dispute' and Application was not filed directly by the

'Operational Creditor' but by its Company Secretary.

2. Learned Counsel for the Appellant submits that the Appellant ought to

have been granted more time to remove the defect. It is also submitted that

the Company Secretary who filed Application under Section 9 of I & B Code was authorised by the Appellant. However, such submission cannot be

accepted in view of the decision of this Appellate Tribunal in "Palogix

Infrastructure Private Limited Vs. ICICI bank Limited" - Company Appeal

(AT)(Insol) No. 30 of 2017 wherein this Appellate Tribunal by judgment dated

20th September, 2017 held as follows:

"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 Application'."

4. Learned Counsel for the Appellant requested to allow the Appellant to

file another Application under Section of 9 'I&B Code'. However, permission

cannot be granted as the application filed by the Appellant has been dismissed

also on the ground of existence of a dispute, even prior to the issuance of the

demand notice sub-Section (1) of Section 8 of the 'I & B Code'.

5. From the impugned order we find that the Respondents brought to the

notice of the Adjudicating Authority certain disputes which were also

supported by e-mail dated 13th May, 2015 which were marked as Annexure

R-4. Other documents were also brought to the notice to the Adjudicating

Authority. In reply, learned Counsel for the Appellant referred to a letter dated

2nd April, 2016 issued by an Advocate on behalf of the Appellant but such

stand has been disputed by the Respondent.

6. However, even after dispute of the amount if certain amount is admitted

by the Respondents but has not paid such amount the Appellant may prefer

application under Section 9 after notice to the Respondent under Sub-Section

(1) of Section 8 of the I & B Code giving a reference to such undisputed debt,

if defaulted.

7. For the reasons aforesaid, while we are not inclined to interfere with the

impugned order dated 21st August, 2017, we allow the Appellant to move

before the appropriate forum in respect of the admitted dues if any. The Appeal

stands disposed of with aforesaid observation. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] [Balvinder Singh] Member (Judicial) Member (Technical)

/akc/uv