JUDGMENT :

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant-‘Operational Creditor’ preferred an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as “I&B Code”). The Adjudicating Authority (National Company Law Tribunal), New Delhi, having rejected the application by order dated 5th September, 2017 in Company Petition No.(IB)-203(ND)/2017, the present appeal has been preferred.

2. The main ground taken by the Adjudicating Authority is that the notice under sub-section (1) of Section 8 of the ‘I&B Code’ has not been issued by ‘Operational Creditor’ or its Authorised Representative having position with or in relation to the ‘Operational Creditor’ but by an Advocate. Reliance has been placed on this Appellate Tribunal decision in “M/s. Uttam Galva Steels Limited v. DF Deutsche Forfait AG & Anr. Company Appeal (AT) (Insolvency) No. 39 of 2017”.

3. Learned counsel appearing on behalf of the Respondent submitted that the Lawyer notice is permissible and as per Companies Act, 2013, an act of any Authorised person can be rectified by Board of Directors, which has been done in the present case. Reliance has been placed on Hon’ble Supreme Court decision in “Maharashtra State Mining Corporation Vs. Sunil S/O Pundikaro Pathak, 2006(5) SCC 96”, wherein the meaning of ratification is explained by the Hon’ble Supreme Court and held that a subsequent ratification of an act is equivalent to a prior authority to perform such act.

4. Learned counsel appearing on behalf of the Respondent-‘Corporate Debtor’ submitted that notice under sub-section (1) of Section 8 of the ‘I&B Code’ was issued on 9th May, 2017 by one Mr. Sharad Tyagi, an Advocate on behalf of the Appellant-‘Operational Creditor’. He relied on decision of this Appellate Tribunal in “Uttam Galva Steel Ltd. (supra)”. It was further submitted that the Appellant-‘Operational Creditor’s’ application was not maintainable under Section 9 of the ‘I&B Code’ on account of notice of dispute to the Appellant. Reliance was placed on Hon’ble Supreme Court’s decision in “Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) Limited- 2017 SCC OnLine SC 1154”.

5. According to counsel for the Respondent-‘Corporate Debtor’, the application filed by the Appellant-‘Operational Creditor’ was not only incomplete and defective in absence of statutory affidavit in terms of Section 9(3)(b) of the ‘I&B Code’, there being ‘dispute in existence’ and other defects, the application under Section 9 of the ‘I&B Code’ was not maintainable.

6. In “Uttam Galva Steel Ltd. (supra)”, this Appellate Tribunal decided the issue whether an ‘Advocate/Lawyer’ or ‘Chartered Accountant’ or ‘Company Secretary’ in absence of any authority of the Board of Directors, and holding no position with or in relation to the ‘Operational Creditor’ can issue notice under sub-section (1) of Section 8 of the ‘I&B Code’ or not. The answer of the Appellate Tribunal is in negative, as quoted below: -

“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/invoice Demanding Payment under the I&B Code is required to be issued in Form-3 or Form - 4. Through the said formats, the ‘Corporate Debtor’ is to be informed of particulars of ‘Operational Debt’, with a demand of payment, with clear understanding that the ‘Operational Debt’ (in default) required to pay the debt, as claimed, unconditionally within ten days from the date of receipt of letter failing which the ‘Operational Creditor’ will initia