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2019 (9) TMI 417 - AT - Insolvency and BankruptcyInitiation of Corporate Insolvency Resolution Process - non-delivery of notice of demand upon the Corporate Debtor - HELD THAT:- Application of Appellant was required to be rejected merely on the ground of non-delivery of notice of demand upon the Corporate Debtor and the Adjudicating Authority had no jurisdiction to record finding with regard to merits of the claim. Period of limitation - Application filed in Form 5 in compliance to the order of Adjudicating Authority seeking initiation of Corporate Insolvency Resolution Process under Section 9 of I&B Code was not hit by limitation but the application was premature as the demand notice stated to have been sent on 11.10.2017 could not be served upon the Respondent and was received back with endorsement “Addressee Left”. Even the notice sent on alternate address was returned with endorsement “No Such Firm”. In absence of service of demand notice upon the Respondent - Corporate Debtor whose existence at the given address itself was doubtful, the Appellant - Operational Creditor was not entitled to seek triggering of Corporate Insolvency Resolution Process. Once application in prescribed form was filed by the Appellant, the Adjudicating Authority was empowered to reject the same for failure on the part of Operational Creditor to deliver demand notice to the Corporate Debtor. We find ourselves left with no course but to dismiss the appeal though only for reasons of non-compliance with the procedural requirements as laid down u/s 8(1) r/w Section 9(5)(ii)(c) of I&B Code. The impugned order as regards findings on admissibility, sustainability and proof of claim besides observations as regards limitation cannot be supported and is set aside. The Appellant shall be at liberty to seek triggering of Corporate Insolvency Resolution Process under Section 9 of I&B Code afresh after complying with the mandatory requirement of Section 8(1) of I&B Code within thirty days from the date certified copy of this judgment is provided to it. The period for which the Appellant has been prosecuting his claim before the Adjudicating Authority and before this Appellate Tribunal shall be excluded from computation of limitation.
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