JUDGMENT :

Sudhansu Jyoti Mukhopadhaya, J.

This appeal has been preferred by the Appellant-M/s SmartCity (Kochi) Infrastructure Pvt. Ltd. (‘Corporate Debtor’) challenging the order dated 9th June, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Chennai Bench, Chennai in CP/484 (IB)/CB/2017.

2. By the impugned order, the Adjudicating Authority entertained the application under section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “I&B Code”) preferred by Respondent- M/s. Synergy Property Development Services Pvt. Ltd. (‘Operational Creditor’) admitted the application, appointed the Interim Resolution Professional and ordered for Moratorium with further directions in terms of ‘I&B Code’.

3. The appellant has challenged the impugned order dated 9th June, 2017, mainly on the following grounds:-

(i) Notice under sub-section (1) of Section 8 was not issued by the ‘Operational Creditor’ but by the ‘Law Firm’, which is not in accordance with law.

(ii) Notice under Rule 4(3) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 was not sent by the ‘Operational Creditor’, but by a ‘Law Firm’ and,

(iii) There is a dispute in existence and therefore the application under Section 9 was not maintainable.

4. Learned Counsel appearing on behalf of the ‘Operational Creditor’ has not disputed the aforesaid facts and submitted that the parties have already reached settlement.

5. Notice under sub-section (1) of Section 8 is to be issued in Form-3 or Form-4, as prescribed under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, which reads as follows:-

“5. Demand notice by operational creditor.– (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.

(2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the corporate debtor,

(a) at the registered office by hand, registered post or speed post with acknowledgement due; or

(b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor.

(3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any.”

6. From the said so-called notice dated 20th April, 2017, we also find that it has not been issued by the ‘Operational Creditor’ but by a Law Firm- ‘JUSTLAW’.

7. In reply to the said notice, the appellant by its reply dated 18th May, 2017 requested the ‘Operational Creditor’ to follow the procedures as per agreement by appointing nominee arbitrator without prejudice to the right of the appellant.

8. Another notice seems to have been issued in terms of Rule 5 of the Adjudicating Authority Rules, 2016 dated 7th January, 2017. Though, it has been issued in the Form-3 but it has not been issued by the ‘Operational Creditor’ but by the same Law Firm-‘JUSTLAW’.

9. Similar issue fell for consideration before this Appellate Tribunal in “M/s. Uttam Galva Steels Limited v. DF Deutsche Forfait AG & Anr. Company Appeal (AT) (Insolvency) No. 39 of 2017” wherein this Appellate Tribunal by its judgment dated 28th July, 2017 held as follows:-

“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 authorised to act on behalf of Operational Creditor. The person who is authorised to act on behalf of Operational Creditor is also required to state “his position with or in relation to the Operational Creditor”, meaning thereby the person authorised by Operational Creditor must hold position with or in relation to the Operational Creditor and only such person can apply.

31. The demand notice