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2021 (3) TMI 299 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate debtor committed default in paying the operational debt - Service of demand notice - pre-existing dispute or not - HELD THAT:- It is not in dispute that the operational creditor supplied the material sought for by the corporate debtor. Some of the materials delivered after 9 months from the date of purchase order. In purchase order the said material was claimed within 15 days from its date and the purchase order was supported with the "PDC" for the price of the goods supplied. In view of the above facts, it is to be held that the goods were supplied by inordinate delay - The operational creditor vide letter dated July 25, 2017 acknowledged short fall of the goods, which was prior to the demand notice but the fact remained on record is that later on the remaining goods were supplied by the operational creditor and corporate debtor accepted the same without any protest. It shows that the corporate debtor gave us its dispute relating to late delivery and now they cannot use that fact as defence. Service of Demand Notice - HELD THAT:- It is now well-settled law that delivery of demand notice under section 8 of the Insolvency and Bankruptcy Code, 2016 is sine qua non for initiating the corporate insolvency resolution process of under section 9 of the Insolvency and Bankruptcy Code, 2016 against the corporate debtor - It has consistently been hold by the hon'ble National Company Law Appellate Tribunal that non-delivery of the demand notice to the corporate debtor is the ground to reject the application under section 9 of the Insolvency and Bankruptcy Code, 2016 - In the present case, the demand notice was rightly sent to the registered office of the corporate debtor. Postal track report in this regard shows that the notice was served upon the corporate debtor. It is not in dispute that the corporate debtor did not reply the notice within 10 days raising any dispute. The operational creditor filed the affidavit stating that the they did not receive reply of the notice from the corporate debtor pointing out any disputes. They did not receive the payment as claimed by them and thereby compliance provision section 9(3)(b) and (c) of the Insolvency and Bankruptcy Code, 2016. The application is defect free - The application is admitted and the moratorium is declared.
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