Whether POA Holder can file Application under I & B Code, 2016
Whether POA Holder can file Application under I & B Code, 2016
Short Summary:
In this flash tabloid, the writer initiates by speak of the
provisions of Insolvency & Bankruptcy Code, 2016 (hereafter referred as
“I&B Code”) in relation to Overriding effect of I&B Code, 2016 over
Power of Attorney Act, 1882.
The main drive of the broadsheet, on the other hand, is upon
the “Whether
Application u/s 9 can be sign by the Power of Attorney Holder”
This is article no. 294 of the series of editorials written by the author
on corporate laws
{Including Companies Act, 2013, SEBI, RBI Regulations, IBC, LLP Act, 2008
etc.}.
In this editorial author discuss the provisions over
riding effect of I&B Code, 2016 on Power of Attorney Act, 1882 and
landmark judgement delivered by NCLAT, in case Steam Shriram EPC Limited
Vs. Rio Glass Solar SA & T
Shivaraman V/s Rio Glass Solar SA &
Anr.
Case element:
Case Name
|
Shriram
EPC Limited Vs. Rio Glass Solar SA
|
Operational Creditor
|
Rio Glass Solar SA
|
Corporate Debtor
|
Shriram EPC Limited
|
Bench Name
|
The
National Company Law Appellate
Tribunal (NCLAT)
|
Link:
|
http://ibbi.gov.in/webadmin/pdf/order/2017/Nov/2nd%20Nov%202017%20in%20the%20matter%20of%20Shriram%20EPC%20Limited%20Vs.%20Rio%20Solar%20SA%20Company%20Appeal%20(AT)%20(Insolvency)%20Nos.%20133,197%20of%202017_2017-11-03%2012:11:37.pdf
|
Order Pronounced on
|
2nd November, 2017
|
A. Factual Background:
§ Appellant:
the application under Section 9 in Form-5 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016 (hereinafter referred to as
‘Adjudicating Authority Rules’) has not been signed by the ‘Operational
Creditor’, but by the “Power of Attorney holder.
§ The
question whether a ‘Power of Attorney holder’ can file an application for
initiation of ‘Corporate Insolvency Resolution Process’ fell for consideration
before this Appellate Tribunal in “Palogix Infrastructure Limited Vs. ICICI Bank
Limited”-Company Appeal (AT) (Insol.) No. 30 of 2017.
B. Finding of Hon’ble Supreme Court:
Hon’ble NCLAT states that,
The
'I&B Code' is a complete Code by itself. The provision of the Power of
Attorney Act, 1882 cannot override
the specific provision of a statute which requires that a
particular act should be done by a person in the manner as prescribed
thereunder.
Therefore,
we hold that a 'Power of Attorney Holder' is not competent to file an
application on behalf of a 'Financial Creditor' or 'Operational Creditor' or
'Corporate Applicant'.”
Thus
application under Section 9 preferred by the Respondent- ‘Operational Creditor’
was not maintainable.
Conclusion:
It
can be opine that Power of Attorney Holder is not competent to file and
application on behalf of FC or OC or CD.
(Author
– CS Divesh Goyal, GOYAL DIVESH & ASSOCIATES Company Secretary in Practice
from Delhi and can be contacted at csdiveshgoyal@gmail.com).
Disclaimer: The entire
contents of this document have been prepared on the basis of relevant
provisions and as per the information existing at the time of the preparation.
Although care has been taken to ensure the accuracy, completeness and
reliability of the information provided, I assume no responsibility therefore.
Users of this information are expected to refer to the relevant existing
provisions of applicable Laws. The user of the information agrees that the
information is not a professional advice and is subject to change without
notice. I assume no responsibility for the consequences of use of such
information. IN NO EVENT SHALL I SHALL BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL OR INCIDENTAL DAMAGE RESULTING FROM, ARISING OUT OF OR IN CONNECTION
WITH THE USE OF THE INFORMATION.
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