Ch Mohd Sharief Tariq, Member - (1.) This petition has been filed under section 9 of the I&B Code, 2016. The applicant is the operational creditor. The notice u/s 8 that has been given to the corporate debtor that is placed at Page 11 Vol-I of the type set to the application, wherein total demand to the tune of Rs.24,80,33,430/-has been made. Reply to this notice has been given by the Corporate debtor on 26.03.2017 [available at Page 1058 Vol III] wherein for the first time the corporate debtor has raised certain issues and counter claim, the details of which are contained in the reply to the notice. It is on record that the Corporate debtor sent a communication dated 2nd December 2016, confirming that as per their books of accounts, an outstanding payable is Rs.17,20,78,503/- which is said to be exclusively of various bills totalling Rs.8,09,71,547/- which is received and stated to have been under process [available a Page 743 - Vol III]. The petitioner has filed an affidavit under section 9 (3) (b) (c) of I&B Code, 2016 [available at Page 1075 -Vol.III] wherein it has been stated that the corporate debtor has not referred to any dispute relating to the unpaid operational debt.
(2.) At this juncture, the learned counsel Mr.A.K.Mylsamy has caused appearance on behalf of the respondent. He has filed a detailed counter and raised two preliminary objections. The first objection is that the application has not been filed by a duly authorised person and the second objection is that the one of the Directors who issued the demand notice has not been authorised by the Board of Directors by way of a passing a specific resolution.
(3.) In relation to the first objection, the counsel for respondent submitted that there is no mention about the Board resolution in the application. However, it is appropriate to mention here that the affidavit which has been annexed to the application clearly provides that the person signing the application is well acquainted with the facts of the case and has been authorised to present the application on behalf of the operational creditor. The learned counsel appearing for the applicant has produced a copy of Board resolution dated 15.03.2017 which confirms that due authority has been given to sign the application. In relation to the second objection that the Director has no authority to give the notice to the corporate debtor without any backing of the Board resolution, the counsel for petitioner has drawn our attention to the decision of the Hon'ble High Court of Mumbai, titled ALCON ELECTRONICS PVT. LTD. Vs. CELEM S.A., reported in 2015(1) Mh.L.J. Under paraNos.27 and 28 of the judgment, it has specifically been mentioned that the Director can file a suit without any specific resolution empowering him. In other words, a Director has the powers to manage the affairs of the company in order to discharge his statutory and fiduciary duties. We know that in some of the decisions, the courts maintained that without a specific resolution passed by the Board of Directors, the Director cannot act on behalf of the company. But those matters are relating to Sections 397 and 398 of the Companies Act, 1956 and the suits as well. But under Section 9 of the I&B Code, 2016, as far as the demand notice is concerned, there is no requirement of passing any specific resolution for issuing of notice to the corporate debtor. Therefore, both of the objections raised by the counsel for respondent are devoid of merits and are rejected.;