Senthil Kumar Karmegam v Dolphin Offshore Enterprises (Mauritius) (P.) Ltd. [Company Appeal (AT) (Insolvency) No. 154 of 2017] - Synopsis
Team SoOLEGAL 9 Feb 2021
In this case, Senthil Kumar Karmegam v Dolphin Offshore Enterprises (Mauritius) (P.) Ltd. [Company Appeal (AT) (Insolvency) No. 154 of 2017], the appellant company had filed an appeal against the order of National Company Law Tribunal, Mumbai Bench, in which the Adjudicating Authority had granted the application for initiation of Corporate Insolvency Resolution Process. This particular order was challenged by the appellant company on the ground that, the demand notice pursuant to subsection (1) of Section 8 of the Insolvency Bankruptcy Code, 2016, was not provided by the Operational Creditor, rather it was issued by the advocate and also not in specified forms 3 or form 4 on behalf of the 'Operational Creditor,' which is not admissible.
The Court was of the view that, according to the Insolvency Bankruptcy Code, 2016 read with Rules, an Advocate or a Charter Accountant or a Company Secretary cannot send any notice under Section 8 of the Insolvency Bankruptcy Code, 2016, in absence of any authority of the Board of Directors. In this case, the demand notice had been provided by a lawyer and there is no proof which shows that the said lawyer holds any position to the respondent company, and as also the format of the demand notice which was issued by the lawyer was not correct as per Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 hence, the initiation of resolution process cannot be granted.
The order which was passed by the Adjudicating Authority for appointing of Interim Resolution Professional, including advertisements published in the newspapers calling for applications etc was set aside by the Appellate Court. The appeal of the applicant was allowed.  


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