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Mr. Senthil Kumar Karmegam Versus Dolphin Offshore Enterprises (Mauritius) Pvt. Ltd. And Unison Engineering & Construction Private Ltd.

2017 (12) TMI 337 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Corporate Insolvency Resolution Process - authority of advocate issuing notice - Held that:- In the present case as the demand notice has been given by an advocate and there is nothing on record to suggest that the advocate in question holds any position with or in relation to the respondent - Dolphin Offshore Enterprises (Mauritius) Pvt. Ltd. and the demand notice has not been issued in mandatory Form 3 or Form 4, as stipulated, under Rule 5 of the Insolvency and Bankruptcy (Application to Adju .....

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I&B Code ) against the order dated 20th June, 2017 passed by the Adjudicating Authority (National Company Law Tribunal) Mumbai Bench in C.P. No. 594/I&BP/2017 whereby and where under the application preferred by the respondent - Dolphin Offshore Enterprises (Mauritius) Pvt. Ltd. (hereinafter referred to as Operational Creditor ) for initiation of Corporate Insolvency Resolution Process has been admitted, order of moratorium has been declared and the Insolvency Bankruptcy Board of India h .....

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ndents including the Corporate Debtor through the Interim Resolution Professional but in spite of service of notice, they did not appear to oppose nor disputed the facts. 4. Learned counsel appearing on behalf of the appellant brought to our notice the purported demand notice dated 17th March, 2017 from which we find that the notice was issued by one Ms. Prinyanka Patel, Advocate on behalf of Operational Creditor. 5. Similar issue fell for consideration before this Appellate Tribunal in Uttam Ga .....

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ule (1) of Rule 5 of the Adjudicating Authority Rules mandates the Operational Creditor to deliver to the Corporate Debtor the demand notice in Form-3 or invoice attached with the notice in Form-4, as quoted below: - Rule 5. (1) An operational creditor shall deliver to the corporate debtor the following documents, namely: - (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4. 29. Clause (a) and (b) of sub-rule (1) of Rule 5 of the Adjudicating Authority Ru .....

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g which we shall initiate a corporate insolvency resolution process in respect of [name of corporate debtor]. Yours sincerely, Signature of person authorised to act on behalf of the operational creditor Name in block letters Position with or in relation to the operational creditor Address of person signing 30. From bare perusal of Form-3 and Form-4, read with sub-rule (1) of Rule 5 and Section 8 of the I&B Code, it is clear that an Operational Creditor can apply himself or through a person a .....

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he said formats, the Corporate Debtor is to be informed of particulars of Operational Debt , with a demand of payment, with clear understanding that the Operational Debt (in default) required to pay the debt, as claimed, unconditionally within ten days from the date of receipt of letter failing which the Operational Creditor will initiate a Corporate Insolvency Process in respect of Corporate Debtor , as apparent from last paragraph no. 6 of notice contained in Form - 3, and quoted above. Only i .....

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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 .....

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