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2019 (12) TMI 1119 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - service of notice u/s 8 of IBC - corporate debtor has failed and neglected to make the payment to the Operational Creditor till date - present case has been filed on behalf of Operational Creditor against the Corporate Debtor U/s 9 of the I & B Code and before filing the present petition, the Operational Creditor had sent the demand notice as required U/s 8 of the IBC - whether the notice sent U/s 8 of the IBC is deemed to be served or not? - HELD THAT:- It is a settled principle of law that there is a difference between the procedure for initiation of CIRP by the Financial Creditors U/s 7 of the IBC and the Operational Creditors U/s 9 of the IBC. So far as the Financial Creditor is concerned, as per Section 7 of the IBC, there is no need to deliver the notice before the initiation of CIRP and that has been decided by the Hon'ble Apex Court in Innoventive Industries Ltd. v. ICICI Bank [ 2017 (9) TMI 58 - SUPREME COURT ]. A mere plain reading of the provision shows that, in this provision like Section 8 of IBC, the word 'deliver the notice' is not mentioned, rather it is mentioned that 'the payee or the holder makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque', where in Section 8 of IBC, the word, 'deliver the notice upon unpaid operational creditor' is mentioned. There is a difference between these two Sections, Section 8 of TBC and Section 138(b) of the N.I. Act regarding the service of notice upon the person concern - The purpose to deliver the notice is to give an opportunity to the Corporate Debtor to raise a dispute or negotiate with the operational creditor and that was the intention of the legislatures, that is the reason the word 'delivery' has been given in place of 'sending or giving the notice upon the person concern'. The applicant had sent the demand notice only through the registered post, which was returned unserved and he has neither delivered it personally nor send the demand notice through electronic mail service to a whole time director or designated partner or key managerial personnel of the corporate debtor - the applicant has not complied the provision contained under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, therefore, this Tribunal is of the considered view that the applicant has not delivered the demand notice as required U/s 8 of the IBC, which is the mandatory provision of law and so on this ground in the absence of delivery of demand notice as required U/s 8 of IBC, the present petition filed by the applicant/operational creditor is not complete and not maintainable and liable to be dismissed. Petition dismissed.
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