National Company Law Appellate TribunalM/S Kailash Devbuild India Private ... vs M/S Inox Wind Infrastructure Services ... on 14 February, 2022NATIONAL COMPANY LAW APPELLATE TRIBUNAL\n                PRINCIPAL BENCH, NEW DELHI\n           Company Appeal (AT) (Insolvency) No. 1014 of 2020\n\nIN THE MATTER OF:\nKailash Devbuild (India) Pvt. Ltd.                               ...Appellant\n\nVersus\n\nInox Wind Infrastructure Services Ltd.                         ...Respondent\nPresent:\n   For Appellant:        Mr. Abhijeet Shrivastava, Advocate.\n\n     For Respondent:     Mr. Pratik Thakkar, Advocate\n\n\n                                   ORDER(Virtual Mode)\n\n14.02.2022:         Heard learned counsel for the Appellant as well as learned\n\ncounsel appearing for the Respondent. This Appeal has been filed against\n\norder dated 17.09.2020 passed by the Adjudicating Authority (National\n\nCompany Law Tribunal), Ahmedabad Bench, Ahmedabad, Court No. 2 by\n\nwhich the Application filed by the Appellant under Section 9 of the Insolvency\n\nand Bankruptcy Code, 2016 (hereinafter referred to as 'Code') has been\n\ndismissed as not maintainable.2.     A notice dated 05.01.2019 in Form IV under Section 8 was issued by\n\nthe Appellant which was signed by one Shri Kailash Shukla who was the\n\nManaging Director of the Appellant. Reply to the said notice was given by the\n\nRespondent - Corporate Debtor on 22.02.2019 which has been placed on\n\nrecord at page 284 of the Appeal. The Reply was addressed to "M/s Kailash\n\nDevbuild (India) Private Limited Through: Mr. Kailash Shukla, Managing\n\nDirector, 817, Hatilal, Jabalpur - 482001, Madhya Pradesh". It is after the\n\nReply to the notice, Application under Section 9 was filed by the Appellant-2-which came to be rejected by the impugned order for reasons recorded in para\n\n8 of the judgment, which is to the following effect:"On perusal of the record it is found that the demand\n\n            notice dated 05.01.2019 (page 257-267), which is a\n\n            pre-requisite under section 8 of the Insolvency &\n\n            Bankruptcy Code, 2016 for filing the petition under\n\n            section 9, is signed and issued by one Mr. Kailash\n\n            Shukla, said to be Director of the applicant company\n\n            whereas the Board Resolution authorising Mr.\n\n            Kailash Shukla is of 14.02.2019. That means, at the\n\n            time of issuing the demand notice dated 05.01.2019,\n\n            Mr. Kailash Shukla had no authority to sign and issue\n\n            such notice. Moreover, the Board Resolution also do\n\n            not specifically empower Mr. Bhanu Shukla to initiate\n\n            CIRP against the corporate debtor. Admittedly,\n\n            Director of a company can issue the notice on behalf\n\n            of the client but due authorisation is required by\n\n            passing resolution in duly convened Board Meeting\n\n            and in the instant case the demand notice was issued\n\n            prior to passing the Board Resolution."3.    Learned counsel for the Appellant submits that Shri Kailash Shukla,\n\nwho has signed the demand notice dated 05.01.2019 was the Managing\n\nDirector of the Appellant and was fully competent to issue the notice under\n\nSection 8. It is submitted that Board Resolution dated 14.02.2019 which has\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2020-3-been referred to in the impugned order was for filing application under Section\n\n9 in which one Mr. Bhanu Shukla was authorised. The Board Resolution is\n\nreferred to is at page 283 of the Appeal which provides that Mr. Bhanu Shukla\n\nis authorised to execute and deliver such letters of appointment, powers of\n\nattorney and such other documents of the company as may be appropriate to\n\ncarrying out the intent of the resolutions.4.    Learned counsel for the Respondent submits that the Board Resolution\n\nwas issued on 14.02.2019 whereas notice was issued under Section 8 on\n\n05.01.2019 signed by Mr. Kailash Shukla.5.    We have considered submissions of learned counsel for the parties and\n\nperused the record.6.    The Section 8 notice which has been brought on record was signed by\n\nMr. Kailash Shukla who was the Managing Director of the Appellant Company\n\nwith regard to this there is no dispute since Reply to the demand notice was\n\nsent to the Appellant through 'Mr. Kailash Shukla, Managing Director' as\n\nnoted above. The application under Section 9 is filed by Mr. Bhanu Shukla\n\nwho was authorised by Board Resolution dated 14.02.2019.7.    Learned Adjudicating Authority has observed that at the time of issuing\n\nthe demand notice on 05.01.2019, Mr. Kailash Shukla has no authority to\n\nsign and issue such notice. The above observation cannot be approved. The\n\nManaging Director of the Applicant was fully authorised to issue demand\n\nnotice under Section 8. We, thus, do not approve the reason given for rejecting\n\napplication under Section 9 as there is no dispute that notice under Section 8\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2020-4-was signed by Mr. Kailash Shukla who was Managing Director of the\n\nApplicant. Moreso, when application under Section 9 was filed by the person\n\nwho was authorised by Board Resolution dated 14.02.2019, there was no\n\noccasion for the Adjudicating Authority to reject the application on aforesaid\n\ngrounds.8.    We, thus, are of the view that impugned order dated 17.09.2020\n\ndeserves to be set aside and is hereby set aside. In result, impugned order is\n\nset aside and application under Section 9 is revived before the Adjudicating\n\nAuthority, which may now be considered and decided by the Adjudicating\n\nAuthority in accordance with law.9.    We make it clear that we have not entered into the merits of the case\n\nand we have not expressed any opinion on the merits. It is for the Adjudicating\n\nAuthority to consider all questions in accordance with law. In view of the fact\n\nthat application is of the year 2019, the Adjudicating Authority shall make all\n\nendeavours to dispose of the matter as early as possible. The Appeal is allowed.[Justice Ashok Bhushan]\n                                                                 Chairperson\n\n\n\n\n                                                    [Dr. Ashok Kumar Mishra]\n                                                           Member (Technical)\nArchana/nn\n\n\n\n\nCompany Appeal (AT) (Insolvency) No. 1014 of 2020