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2020 (1) TMI 1393 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - no authorisation in favour of the person who has initiated the present proceedings from inception on behalf of the operational creditor - time limitation - pre-existing dispute between the parties which would disentitle the petitioner to maintain the present petition - 3 invoices are for the period during which the previous management was in power. Maintainability of application - no authorisation in favour of the person who has initiated the present proceedings from inception on behalf of the operational creditor - HELD THAT:- The instant petition is filed by one Mr. Paresh Waskar, who is working as a Dy. Manager in the applicant company. The petitioner has not furnished any document authorising Mr. Paresh Waskar to initiate insolvency proceedings against the respondent company. It is to be noted that the company being juristic person can only act through an "Authorised Representative". Form No. 5 mandates to submit "name and address of the person authorised to submit application on its behalf". The authorisation letter is required to be enclosed. The signature block of the aforementioned Form No. 5 also provides for authorised person's details is to be inserted and also included, inter alia, the position of the authorised person in relation to the applicant. Thus it is clear that only an authorised person as distinct from power of attorney holder can make an application. In the instant application no authorisation is filed. That apart, even Board Resolution is not there. Hence, on this ground itself the application is not maintainable. Time Limitation - HELD THAT:- On perusal of the record it is found that the instant application is filed on 20th November, 2018. As per the records made available by the petitioner page No. 18 to 55 of the application, relates to 26 invoices for the period from 30-9-2013 to 11-9-2014. From the above it is evident that all the 26 invoices against which the claim is made by the petitioner are of the year 2013 - 2014 and therefore hit by the Limitation Act as the application filed on 20th November, 2018 is beyond three years. Admittedly, the applicant issued statutory notice for winding up under section 433 and 434 of the Companies Act, 1956.but, has never filed any application before the Hon'ble High Court for winding up and thereby allowed the claim/right to be time barred. Thus, on this count also it finds that the application is bad and fit for dismissal - Further, on perusal of the record i.e. Form No. 5 it is found that date of default and due date are not given. Thus, form 5 i.e. application itself is incomplete and deserves to be rejected. Thus, it is found that the instant application is filed with malicious intent other than "reorganisation "and/or insolvency resolution of corporate persons, partnership firms and individuals, in a time bound manner for maximisation of value of assets" which is the objective of the I & B Code - One must keep in mind that Insolvency & Bankruptcy Code is not a recovery process. Recovery is an individual effort by a creditor to recover his dues through a process that has debtor and creditor on opposite sides. In fact, the I & B Code prohibits and discourages recovery in several ways. The insolvency code cannot be used for extraneous consideration or as a substitute for debt enforcement procedure, when it requires further investigation. There is/are no merit in the application, rather the same is filed with malicious intent and thereby applicant misused the process of law. Hence, a penalty of ₹ 1.00 lakh is imposed upon the applicant. The penalty so imposed is to be deposited in the Defence Welfare Fund within fifteen days from the date of order. Petition dismissed.
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