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2020 (3) TMI 1251 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - pre-existing dispute or not - demand notice under Section 8(1) of the IB, Code - HELD THAT:- The demand notice was sent through its proprietor Ms. Shipra Somani and not in the name of M/s. Jai Laxmi Traders. Therefore, the contention of the applicant that since it was sent in the name of proprietorship firm, therefore, it is not the proper demand notice is not correct rather we are of the view that since it was sent through the Shipra Somani, hence it is maintainable and same is a demand notice under Section 8(1) of the IB, Code. Before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as required under Section 8(1) of the IB, Code, then he cannot invoke the provision under Section 9, rather he can invoke the provision of Section 9 only, when CD fails to raise the existing of disputes or place the document to show that unpaid operational-creditor has been paid within ten days of the receipt of the demand notice. Therefore on the basis of aforesaid provision, we are of the view that Section 8 and 9 cast a duty upon the operational-creditor as well as CD to act as per Section 8 and if they fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the CDs can be taken into consideration. In the present case, since it is specifically mentioned in Section 8(2) that within ten days from the date of the receipt of the demand notice, the corporate-debtor is required to bring to the notice of the operational-creditor, the existence of dispute or the documents regarding the payment of debt, therefore, we have no option, but to hold that since the corporate-debtor fails to give the reply of the demand notice and raised the disputes, hence after his appearance in response to the notice, he cannot raise it by filing the reply to the application filed on behalf of the operational-creditor. Thus, there is no force in the contention raised on behalf of the learned counsel for the corporate-debtor, since there is an existence of disputes, hence the present application is not maintainable - application admitted - moratorium declared.
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