Pck Buderus (India) Special Steels Pvt. ... vs Sungil India Pvt. Ltd
- CitationCompany Appeal (AT) (Insolvency) No.311 of 2017
Ratio decidendi
The rule this decision rests on
A demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 issued by an advocate, Chartered Accountant, Company Secretary or other person who is authorised by the Operational Creditor but holds no position with or in relation to the Operational Creditor is not a valid notice under Section 8, and the defect in it is incurable; the Adjudicating Authority is therefore not in error in rejecting an application founded on such a notice.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
PCK Buderus (India) Special Steels Pvt. Ltd. 84, South West Boag Road, Chennai - 600 017, Tamil Nadu, India. ...Appellant
Vs
Sungil India Pvt. Ltd. Flat No.351, LIG, L&T, PKT, (Shree Awas RWA), PH-2, Sector - 18B, Dwarka, South West Delhi - 110078, India. ...Respondent
Present:
For Appellants: Mr. Ranjeet K Ranjan, Advocate.
For Respondents: None.
ORDER
11.12.2017: The Appellant is aggrieved of order dated 3rd November, 2017 passed by Adjudicating Authority, NCLT, New Delhi Bench in (IB) 399(ND)/2017 by virtue whereof notice u/s 8 of 'I & B Code' issued by Ms. Ashmita A. Naik, Advocate on behalf of Operational Creditor has been held to be suffering from inherent technical defect which was incurable.
2. After hearing learned counsel for appellant for a while, we are of the considered opinion that in view of the dictum of this Appellate Tribunal in 'Macquarie Bank Limited versus Uttam Galva Metallics Limited in Company Appeals (AT) (Insol) No. 96 of 2017' that an advocate or a Chartered Account or a Company Secretary or any other person in absence of any authority by the 'Operational Creditor', and if such person does not hold any position with or in relation to the 'Operational Creditor', cannot issue notice under Section 8 of 'I & B Code', no fault can be found with the impugned order as admittedly the
Company Appeal (AT) (Insolvency) No.311 of 2017 -2-
advocate issuing notice under Section 8 of 'I & B Code', though authorised, did not hold any position with or in relation to the 'Operational Creditor'.
3. The demand notice in the case in hand does not satisfy the requirements of Section 8 of Insolvency & Bankruptcy Code. The notice is defective and the defect is incurable. The aforesaid Judgement has been reiterated in a number of cases and holds field as on date. Keeping the same in view the impugned order does not suffer from any legal infirmity and no fault can be found with the same. The appeal is without any substance and same is dismissed. However, this order will not preclude the Appellant from initiating fresh process after complying with the mandate of law.
(Justice Bansi Lal Bhat) Member (Judicial)
(Balvinder Singh) Member (Technical)
am/uk
Company Appeal (AT) (Insolvency) No.311 of 2017
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