TMI Blog2018 (4) TMI 1805X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted a letter dated September 11, 2017 from ICICI Bank confirming that no amount had been received in the account of the operational creditor from any account of the corporate debtor since July 7, 2016. The existence of debt and default were satisfactorily established by the operational creditor. No pre-existing dispute was brought to the notice of the Adjudicating Authority to reject the application. Assuming that there was a defect in the demand notice, the Adjudicating Authority was required to provide opportunity to the operational creditor to remove the same. The Adjudicating Authority appears to have overlooked the legal aspects. It also appears that the appellant had sent another demand notice which was received back as refuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 25, 2014 placed by the respondent/corporate debtor with it. It was alleged by the appellant/operational creditor that despite raising invoices on the respondent/corporate debtor as specified in paragraph 4(vi) of the impugned judgment on service of notice of demand, the respondent/corporate debtor failed to clear the outstanding dues, thereby leaving the appellant/operational creditor with no option but to seek triggering of CIRP under section 9 of the I and B Code. 2. The respondent/corporate debtor filed a counter affidavit before the Adjudicating Authority raising many pleas to contest the application which primarily related to non-compliance with mandate of section 8 of the I and B Code. 3. The Adjudicating Authority, upon c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed two demand notices in terms of the provisions of the I and B Code calling upon the respondent/corporate debtor to pay the debt amount of ₹ 34,42,005.57 being the amount due. According to the appellant the Adjudicating Authority was bound to admit the application once it had found that the respondent had admitted its liability and expressed its inability to make the due payment after receipt of the demand notice. However, the respondent reiterated that the demand notices were defective and did not comply with the mandatory statutory provisions of the Code. 5. Assailing the impugned order, learned counsel for the appellant submits that despite admission of liability by the respondent, the Adjudicating Authority overlooked the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent supported the impugned order as according to him the demand notices were defective as not being in the prescribed form. 6. Heard learned counsel for the parties. It appears that the Adjudicating Authority relied upon the judgment of this Appellate Tribunal rendered in Uttam Galva Steels Ltd. v. DF Deutsche Forfait AG [2017] 204 C-C 511 (NCLAT) in Company Appeal (AT) (Insolvency) No. 39 of 2017 on July 28, 2017 in arriving at the conclusion that an advocate holding no position with or in relation to the operational creditor, in the absence of any authority of the board of directors, cannot issue any notice under section 8 of the I and B Code. The aforesaid judgment has been set aside by the hon'ble apex cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is clearly borne out by conjoint reading of sections 8 and 9(1) of the I and B Code. The hon'ble apex court while dealing with this aspect in Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [2018] 1 Comp Cas-OL 644 (SC) held that the requirement of an application filed under section 9(2) of the I and B Code being accompanied by an invoice/demand notice is a mandatory condition precedent to the filing of the application. 8. Adverting to the facts of instant matter, be it seen that the appellant/ operational creditor served demand notice dated April 7, 2017 on the respondent/corporate debtor in terms of section 8 of the I and B Code. The respondent/corporate debtor claimed that the demand notice was defective. The Adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of ten days of receipt of demand notice, the existence of dispute or pendency of a suit or arbitration proceeding which is pre-existing. Proof of existence of a debt and a default in relation to such debt can be proved by documentary evidence as contemplated by section 9(3)(d) of the I and B Code. Section 8 does not prescribe any particular method of proof of occurrence of default. In the instant case it has been noticed by the Adjudicating Authority that the operational creditor had submitted a letter dated September 11, 2017 from ICICI Bank confirming that no amount had been received in the account of the operational creditor from any account of the corporate debtor since July 7, 2016. The existence of debt and default were satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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