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TMI Blog2017 (8) TMI 1647X X X X Extracts X X X X X X X X Extracts X X X X ..... ex-employees of appellant-M/ s. Aruna Hotels Limited, preferred their respective applications under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') for initiation of Corporate Insolvency Resolution Process against the appellant/ 'Corporate Debtor'-M/s. Aruna Hotels Ltd. They alleged that the arrears of salaries due to them have not been paid and thereby, there is a default of debt. 3. Learned Adjudicating Authority (National Company Law Tribunal) Division Bench, Chennai (hereinafter referred to as 'Adjudicating Authority') noticed that one of the respondent employee, Mr. D. Ramjee, claimed amount to the tune of Rs. 2,13,65,565/- towards arrears of salary, and Rs. 47,03,318/- towards gratuity and leave salary, totalling Rs. 2,60,68,883/- and a demand notice was sent by the said employee on 24th March, 2017. An affidavit sworn by Mr.D. Ramjee under Section 9(3)(b)(c) of the I&B Code has been placed - on record and thereby admitted the application. 4. In view of the fact that one of the application has been admitted, in relation to the other two applications, preferred by Mr. N. Kirshnan and Mr. C. Ganapathy, both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to find out whether the appellant intends to pay the arrears, if any, due to one or other employee. Today, it is informed that though the claims of the respondents are barred by limitation, the appellant may agree to pay arrears of three years' salary, if due to one or other respondent and postretirement benefit, if due. 9. Learned counsel for the respondents submits that the respondents do not agree with the proposal as given on behalf of the appellant and, therefore, we heard the appeals on merit. 10. Admittedly, no demand notice under Section 8 was given by any of the individual respondent-'Operational Creditor', either in Form-3 or Form-4 of the Adjudicating Authority Rules. All the notices, which are same and similar and all dated 27th February, 2017, were issued by the same advocate, on behalf each of the respondents. Only the amount of default shown therein are varying. Learned counsel for the respondents accepts that apart from advocate notice, no separate notice under . Section 8. were individually given by any of the respondents. 11. Similar issue fell for consideration before this Appellate Tribunal, in the case of "Macquarie Bank Limited Vs. Uttam Gal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 singing 16. 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 the 'Operational Creditor' can apply himself or through a person authorized to act on behalf of the 'Operational Creditor, who hold same position with or in relation to the 'Operational Creditor'. Thereby such person(s) authorized by 'Operational Creditor',, holding position with or in relation to the 'Operational. Creditor' can only apply. 17. In view of such provision we hold that an advocate / lawyer or Chartered Account or a Company Secretary or any other person in absence of any authority by the 'Operational Creditor', and if such person do not hold any position with or in relation to the 'Operational Creditor', cannot issue notice under Section 8 of 'I & B Code', which otherwise can be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid stipulation is served on the 'Corporate Debtor', the 'Corporate Debtor' will understand the serious consequences of non-payment of 'Operational Debt', otherwise like any normal pleader notice/advocate notice or like notice under Section 80 of the Code of Civil Procedure, 1908 or notice for initiation of proceeding under the Industrial Disputes Act, 1947, the 'Corporate Debtor' may not take it seriously and may decide to contest the suit/case, if filed, before the appropriate forum. However, where the claim is made under Section 8 of I&B Code, in such case, the 'Corporate Debtor' will understand the seriousness that it cannot contest the claim, except in a case where a dispute has already been raised, prior to the issuance of notice under Section 8. 13. As the case of the appellant in all the appeal, is covered by the decision rendered in the case of 'Macquarie Bank Limited (supra)', we are not going into other aspects as to whether the respective claims made by the respondents are barred by limitation or there is a delay and laches on their part or there is any dispute in existence. 14. In view of the discussion as made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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