TMI Blog2017 (11) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... record to suggest that any Lawyer or Law Firm hold any position with or in relation with the Respondents-‘Operational Creditor’. In view of the aforesaid facts and the decision of this Appellate Tribunal in “ M/s. Uttam Galva Steels Limited v. DF Deutsche Forfait AG & Anr [2017 (8) TMI 1198 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI ]” we hold that the notice(s) issued by the Law Firm ‘JUSTLAW’ on behalf of Respondents-‘Operational Creditor’ cannot be treated as a notice under section 8 of the ‘I&B Code’ and for that the petition under section 9 at the instance of the Respondents against the appellant was not maintainable. From bare perusal of the record, it is clear that on 12th November, 2016, one Mr. Govindan Kutty M on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt- M/s. Synergy Property Development Services Pvt. Ltd. ( Operational Creditor ) admitted the application, appointed the Interim Resolution Professional and ordered for Moratorium with further directions in terms of I B Code . 3. The appellant has challenged the impugned order dated 9th June, 2017, mainly on the following grounds: - (i) Notice under sub-section (1) of Section 8 was not issued by the Operational Creditor but by the Law Firm , which is not in accordance with law. (ii) Notice under Rule 4(3) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 was not sent by the Operational Creditor , but by a Law Firm and, (iii) There is a dispute in existence and therefore the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said notice, the appellant by its reply dated 18th May, 2017 requested the Operational Creditor to follow the procedures as per agreement by appointing nominee arbitrator without prejudice to the right of the appellant. 8. Another notice seems to have been issued in terms of Rule 5 of the Adjudicating Authority Rules, 2016 dated 7th January, 2017. Though, it has been issued in the Form-3 but it has not been issued by the Operational Creditor but by the same Law Firm- JUSTLAW . 9. Similar issue fell for consideration before this Appellate Tribunal in M/s. Uttam Galva Steels Limited v. DF Deutsche Forfait AG Anr. Company Appeal (AT) (Insolvency) No. 39 of 2017 wherein this Appellate Tribunal by its judgment dated 28th July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 433 of the Companies Act 1956, the Corporate Debtor may decide to contest the suit/case if filed, distinct Corporate Resolution Process, where such claim otherwise cannot be contested, except where there is an existence of dispute, prior to issue of notice under Section 8. 32. In view of provisions of I B Code, read with Rules, as referred to above, we hold that an Advocate/Lawyer or Chartered Accountant or Company Secretary in absence of any authority of the Board of Directors, and holding no position with or in relation to the Operational Creditor cannot issue any notice under Section 8 of the I B Code, which otherwise is a lawyer s notice as distinct from notice to be given by operational creditor in terms of section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector Dear Mr. Liju Eapen We refer to the mail from Mr. Govindan Kutty M dated 4th November, 2016 with copy to you on discontinuation of PMC services on alleged nonpayment of dues and wish to bring to your attention to the following aspects: 1.This is the third unilateral discontinuation of the PMC services by you till date. We feel that such action of you by abandoning the work and withdrawing the staff without proper notice and formal handing over of documents is unprofessional and delaying the project completion resulting in losses to SCK for which you alone will be responsible. This action of you is against the true spirit of the engagement. 2. We confirm that all our commitments for payments, those are due as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or completing your scope of work in an orderly fashion as envisaged in the contact. Yours faithfully. For SmartCity (Kochi) Infrastructure Pvt. Ltd. Sd/- Kurian Kurjan Director Projects 14. Therefore, it is clear that much prior to the so-called notice under section 8 of the I B Code , a dispute was raised by Appellant- Corporate Debtor regarding non-completion and abandoning of the work. 15. In view of the aforesaid reasons and findings recorded above, we hold that the impugned order dated 9th June, 2017 is illegal and set aside the said order passed by Adjudicating Authority, Chennai Bench in CP/484 (IB)/CB/2017. 16. In effect, order (s), if any, passed by Ld. Adjudicating Authority appointing a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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