TMI Blog2017 (10) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... er delegated with power can claim to be the 'Authorized Representative' for the purpose of filing any application under section 7 or Section 9 or Section 10 of 'I&B Code'. As per Entry 5 & 6 (Part I) of Form No. 1, 'Authorised Representative' is required to write his name and address and position in relation to the 'Financial Creditor'/Bank. If there is any defect, in such case, an application under section 7 cannot be rejected and the applicant is to be granted seven days' time to produce the Board Resolution and remove the defect. This apart, if an officer, such as senior Manager of a Bank has been authorised to grant loan, for recovery of loan or to initiate a proceeding for 'Corporate Insolvency Resolution Process' against the person who have taken loan, in such case the 'Corporate Debtor' cannot plead that the officer has power to sanction loan, but such officer has no power to recover the loan amount or to initiate 'Corporate Insolvency Resolution Process', in spite of default of debt. If a plea is taken by the authorised officer that he was authorised to sanction loan and had done so, the application under section 7 cannot be rejected on the ground that no separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 2013 for constituting a larger Bench for decision on the following questions: - Whether The Constituted Attorney authorised on 20/10/2014 to file suits and/or proceedings against the company for recovery of the amount and also to affirms plaints cum affidavits and other pleadings in any court of India including NCLT can file application for initiation of corporate insolvency process under Section 7 of the Insolvency and Bankruptcy Code 2016 without having specifically authorized to lodge Application/Petition under IBC 2016? 4. By majority judgment, the Adjudicating Authority held that for initiation of 'Corporate Insolvency Resolution Process', there should be specific authorization to the Power of Attorney Holder to initiate the 'Corporate Insolvency Resolution Process'. The 'Financial Creditor'-ICICI Bank having not filed specific authorization to initiate 'Corporate Insolvency Resolution Process', was directed by the order dated 12th April, 2017 to rectify the defects. The said order has been challenged by the 'Corporate Debtor' in Company Appeal (AT) (Insolvency) No. 30 of 2017. 5. The 'Financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under Section 7 of the 'I B Code'. 11. Learned Counsel for the 'Financial Creditor' referred to Rule 2(6) of the NCLT Rules, 2016 which defines an authorised representative to be a person authorised in writing by a party to present his case before the Tribunal as the representative of such party as provided under Section 432 of the Companies Act, 2013. The said Rule having not been adopted under 'T B Code' or Rules framed thereunder, we are of the view that no reliance can be placed on Rule 2(6) of NCLT Rules, 2016. 12. Rule 10 of 'Adjudicating Authority Rules' states that till the time rules of procedure for conduct of proceedings under the 'I B Code' are notified, an application made under section 7(1) shall be filed before the Adjudicating Authority in accordance with Rules 20, 21, 22, 23, 24 and 26 of Part III of NCLT Rules, 2016. 13. Rule 23(1) of NCLT Rules permits an authorised representative to present an application or petition before the Tribunal. Thus, we hold that 'Authorised Representative' can file an application under Section 7 of the 'I B Code' on behalf of the 'Financial Creditor'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I B Code' if signed and filed by a 'General Power of Attorney Holder' without specific authorization is not maintainable. According to him, the procedure prescribed requires specific authorization such as: (i) The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules 4 10) incorporate by reference procedure prescribed under Rule 23 and 26 of the National Company Law Tribunal Rules 2016. (ii) Rule 23 read with Rule 26 of the National Company Law Tribunal Rules, 2016 requires petition/ application to be signed and verified by 'Authorized Representative' of the petitioner. 21. According to the 'Corporate Debtor' the 'Authorization' in the case of a company would mean a specific authorization by the Board of Directors of the company by passing a resolution. The reliance has been placed on the Hon'ble Supreme Court's decision in State Bank of Travancore vs. Kingston Computers India Fyi. Ltd. (2011) 11 SCC 524 . 22. Therefore, according to the 'Corporate Debtor', an application under section 7 of the 'I B Code' in absence of any supporting affidavit verifying the petition is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'J B Code'. 27. The seven days for rectification of defects is to be counted not from the date of the order passed by the Adjudicating Authority but from the date of receipt of such notice from the Adjudicating Authority to rectify the defects in the application. The 'Corporate Debtor', though raised objection that the defects were not removed within seven days, but not given the date on which the notice for correction of defect was served by the Adjudicating Authority on the 'Financial Creditor'-ICICI Bank. In absence of such specific pleadings stand taken by the 'Corporate Debtor' that objection that defect was not removed within seven days cannot be accepted. This apart, we accept the stand taken by the 'Financial Creditor' that for the purpose of counting the period of seven days, apart from the date of receipt of the order for removal of defects, the holidays such as Saturdays, Sundays and other holidays of the Tribunal to be excluded. 28. For determination of question relating to Power of Attorney, as raised in this appeal, it is desirable to refer Section 2 of Power of Attorney Act, 1882 which reads as follows:- 2. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Authority Rules. Upon perusal of the Adjudicating Authority Rules and Form-1, it may be duly noted that the 'I B Code' and the Adjudicating Authority Rules recognize that a 'Financial Creditor' being a juristic person can only act through an Authorised Representative . Entry 5 6 (Part I) of Form No.1 mandates the 'Financial Creditor' to submit name and address of the person authorised to submit application on its behalf. The authorization letter is to be enclosed. The signature block of the aforementioned Form 1 also provides for the authorised person's detail is to be inserted and also includes inter alia the position of the authorised person in relation to the 'Financial Creditor'. Thus, it is clear that only an authorised person as distinct from Power of Attorney Holder can make an application under section 7 and required to state his position in relation to Financial Creditor . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B Code'. 37. As per Entry 5 6 (Part I) of Form No. 1, 'Authorised Representative' is required to write his name and address and position in relation to the 'Financial Creditor'/Bank. If there is any defect, in such case, an application under section 7 cannot be rejected and the applicant is to be granted seven days' time to produce the Board Resolution and remove the defect. 38. This apart, if an officer, such as senior Manager of a Bank has been authorised to grant loan, for recovery of loan or to initiate a proceeding for 'Corporate Insolvency Resolution Process' against the person who have taken loan, in such case the 'Corporate Debtor' cannot plead that the officer has power to sanction loan, but such officer has no power to recover the loan amount or to initiate 'Corporate Insolvency Resolution Process', in spite of default of debt. 39. If a plea is taken by the authorised officer that he was authorised to sanction loan and had done so, the application under section 7 cannot be rejected on the ground that no separate specific authorization letter has been issued by the 'Financial Creditor' in favour of such of ..... 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