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2021 (4) TMI 1070 - Tri - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Debt - demand Notice u/s 8 of IBC has never been received by the Corporate Debtor - HELD THAT:- The Demand Notice U/s. 8 dated 05.04.2019 is recorded and annexed as Annexure A- 4. It was sent by speed post and in rejoinder the Operational Creditor has also produced on record the postal track report as Annexure-1 (Page No. 18 of the rejoinder) which shows that the Demand Notice was sent at correct Registered address of the Corporate Debtor and it has been delivered to the Corporate Debtor - the Demand Notice was served to the Corporate Debtor but Corporate Debtor did not reply to the notice either by pointing pre-existing dispute or the fact that it has made payment of the amount of the debt as claimed by the Operational Creditor. It is the defence of the Corporate Debtor that in fact some amount is receivable from them but we hold that defence of set off or counter-claim is not available under the IBC, 2016. We also make it clear that if Corporate Debtor had any defence, he certainly would have replied the Demand Notice within 10 days of its receipt - the Operational Creditor established that there is an Operational Debt more than ₹ 1,00,000/- (as per Sec. 4 of IBC, 2016) due and payable by the Corporate Debtor and Corporate Debtor committed the default in paying the same in spite of receipt of notice U/s. 8 of IBC. This Application is defect free - Adjudicating Authority is further satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay - application admitted - moratorium declared.
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