TMI Blog2021 (1) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is prescribed in Form-3. The delivery of notice is to be effected in the prescribed form which must emanate from the Operational Creditor or any authorized person on its behalf. In the case in hand, it is not in controversy that the demand notice in prescribed form has been issued by the lawyer of Operational Creditor and delivered upon the Corporate Debtor. Perusal of the demand notice forming Annexure A-16 to the appeal paper book at Page 227, Volume-II brings it to fore that the same has been issued by one Mr. Sumit Kumar, Advocate under instructions from and on behalf of Operational Creditor. It is the dictum of the Hon ble Apex Court in MACQUARIE BANK LIMITED VERS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor under Section 9 of the Insolvency and Bankruptcy Code, 2016 ( I B Code for short) came to be dismissed at the hands of the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad, Court No.II, in terms of the impugned order dated 4th September, 2020 holding the same to be not maintainable for the reasons that the demand notice was issued without any authority. 3. Heard learned counsel for the Appellant and perused the record. 4. It is well settled by now that delivery of a demand notice of unpaid operational debt by the Operational Creditor upon the Corporate Debtor under Section 8(1) of the I B Code is a sine-qua-non for initiation of Corporate Insolvency Resolution Process (CIRP) by Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s finding is unsustainable as in case of a person other than an Advocate, the Board Resolution would be required but in the event of a demand notice being issued by an Advocate duly instructed by his client (Operational Creditor), there is no need of requirement of authority being backed by the Board Resolution. 5. Learned counsel for the Appellant has pointed out that the Adjudicating Authority itself has, in SVG Fashion Limited v. Arpita Filaments Pvt. Ltd.-Company Petition No. (IB)-182/9/NCLT/AHM/2018 decided on 26th September, 2019, held: 10 . ..Further, with regard to the issue of demand notice issued through advocate is also not sustainable as it is already settled by the Hon ble Supreme Court that the Advocate can is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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