Manpowergroup Services India Private ... vs M/S Euphoria Technologies Private ...

Manpower Group Services India Pvt. Ltd. ...Appellant

Versus

Euphoria Technologies Pvt. Ltd. ...Respondent

Present: For Appellant: Mr. Krishnendu Datta, Sr. Advoczte with Mr. Aaditya Vijaykumar and Ms. Akshita Katoch, Advocates. For Respondent: Mr. Pulkit Tare and Mr. Mohit Bafna, Advocates.

ORDER

(Virtual Mode)

02.02.2022: Heard learned counsel for the Appellant as well as counsel

appearing for the Respondent. This Appeal has been filed against the order

of the Adjudicating Authority (National Company Law Tribunal), Ahmedabad

Bench dated 23.11.2020 by which application filed by the Appellant under

Section 9 has been rejected. A demand notice dated 07.10.2019 was issued

under Section 8 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as 'Code') to the Corporate Debtor claiming debt of an amount

Rs.1,45,49,837/- alongwith interest as due. Notice was not replied by the

Corporate Debtor. The Operational Creditor thereafter on 23.11.2020 filed a

Section 9 application. The Adjudicating Authority issued notice on the

application. The Corporate Debtor appeared before the Adjudicating

Authority. The Adjudicating Authority rejected the application by giving

following reasons in Para 11:-

Cont'd..../ -2-

"11. On perusal of the records it is found that the demand notice which is a pre-requisite under section 8 of the Insolvency & Bankruptcy Code, 2016 for filing the petition under section 9, issued by the applicant on 07.10.2019 (page 57-74) is signed and issued by an unidentified person on behalf of the applicant company without mentioning designation or full name of the person who has signed it. On perusal of the records it is found that vide Board Resolution dated 15.11.2019 one Mr. Sandeep Pramanik, Director - Human Resource has been given authority to initiate CIRP proceedings against the corporate debtor. On perusal of the records it is also found that the authority letter/Board Resolution empowering Mr. Sudeep Pramanik (page 13) to initiate action under section 9 of the I&B Code, is dated 15.11.2019. While comparing with the signature appearing in the demand notice and the petition (form 5) it is found that the signatory in both the documents are different. Even assuming that the said demand notice dated 07.10.2019 was signed and issued by Mr. Sudeep Pramanik, it is evident from the records that at the time of issuing the demand notice dated 07.10.2019, Mr. Sudeep Pramanik, Director of the company had no authority to issue demand notice and the person who has signed the demand notice is somebody else who had no authority to issue such notice."

2. Shri Krishnendu Datta, learned counsel for the Appellant submits that

the notice under Section 8 was issued by Director of the Company who was

fully authorized and in the Section 9 application demand notice was

mentioned and relied by the Operational Creditor for proceeding under

Company Appeal (AT) (Insolvency) No. 14 of 2021 -3-

Section 9. It is submitted by Shri Datta the Adjudicating Authority should

have given opportunity to the Operational Creditor to clarify if there was any

doubt regarding the details of the person who has given the notice. It would

have been clarified that he was the Director of the Company but without giving

any opportunity application under Section 9 was rejected on such technical

ground. Power of Attorney has also been brought on record by the Appellant

which is of the period earlier to the notice.

3. Learned counsel for the Respondent submits that Power of Attorney

which has been filed in the Appeal was not filed before the Adjudicating

Authority and could not be relied. He submits that in the notice under

Section 8 there were no details of the person who has signed the notice; hence

the Adjudicating Authority has rightly rejected the application. He further

submits that liberty was granted to the Appellant to initiate fresh proceeding.

4. We have considered submissions of learned counsel for the parties and

perused the record.

5. The fact that Section 8 notice was issued by the Corporate Debtor find

mention in the Section 9 application and adopted for initiating Section 9

proceeding. Observation of the Adjudicating Authority that notice under

Section 8 was singed and issued by an unidentified person, cannot be

approved. If the Adjudicating Authority had any doubt about details of person

signing the notice, an opportunity ought to have been given to the Appellant

to explain before the Adjudicating Authority and remove defects, if any,

including details of authorization of person issuing notice. There is no

Company Appeal (AT) (Insolvency) No. 14 of 2021 -4-

dispute that the application under Section 9 was filed by the person who was

duly authorized by the Board Resolution dated 15.11.2019. It is not a case

that Section 9 application was filed by an unauthorized person. Appellant

filed Section 9 application through a person authorized by the Board

Resolution dated 15.11.2019. Finding of Adjudicating Authority that there

is different signatory in the demand notice and Section 9 application and

name of person who signed notice is not clearly mentioned cannot be ground

for rejecting application under Section 9. We are of the view that Adjudicating

Authority ought not have rejected application on aforesaid ground.

6. Now the materials have been brought on record to the effect that person

who has given the Section 8 notice was Director of the Appellant, we are

satisfied that notice was issued by a competent person. In view of the above,

we set aside the order of the Adjudicating Authority and revive the application

before the Adjudicating Authority which may be considered and decided by

the Adjudicating Authority after hearing the parties. We make it clear that we

are not expressing any opinion on the merits of the case. The appeal is

allowed accordingly.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 14 of 2021