Whether POA Holder Can File Application Under IBC, 2016

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.

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  application on behalf of FC or OC or CD.

(Author – CS Divesh Goyal, ACS is a Company Secretary in Practice from Delhi and can be contacted at csdiveshgoyal@gmail.com)