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2018 (7) TMI 1633 - Tri - Insolvency and BankruptcyCorporate Insolvency Resolution Process - outstanding debt - Held that:- It is the case of the Operational Creditor that the aforesaid amount of ₹ 30/- crores was advanced by it to Monnet Ispat for construction of power plant and supply of ancillary equipment. The Operational Creditor is to stand in the shoes of its Predecessor-in-interest. The relationship between them was that of supplier of goods and services which is fully covered by the provisions of Section 5(20) & 5(21) of the Code. Therefore, there is no escape from the conclusion that the applicant is an Operational Creditor and the argument to the contrary advanced by Mr. Sibal would not be sustainable. On the occurrence of default, a notice under Section 8 of the Code is required to be issued as is evident from the opening sentence of Section 8(1) of the Code. The fact that the amount has become due becomes evident from the payment sought to be made by three cheques which were taken back by the Corporate Debtor and the amount remained unpaid. The intention to recover and the willingness to pay stand established which was followed by issuance of a demand notice. Therefore, acknowledgement of debt is established by executing the tripartite agreement. The default has also been established on account of issuance of cheques and its non-payment has also been established. Therefore, it cannot be argued that default has not occurred. The expression default within the meaning of Section 3(12) of the Code has been defined to mean non-payment of debt when whole or any part of the amount of debt has become due and payable and is not paid by the Corporate Debtor. If this cannot be regarded as default what else could be so regarded. Argument that the notice of demand has been served only on the Director would also lack substance as Rule 5(2)(b) of the Rules clearly postulates that demand notice or the copy of the invoice demanding payment may be delivered to the Corporate Debtor by electronic mail service to a whole time Director or designated partner etc. Once the demand notice was served on the Director then the requirement of the Rules stands satisfied. Under Section 20 of the Companies Act, 2013 read with Section 27 of the General Clauses Act such a service would also be regarded as good service. In any case the Corporate Debtor cannot take shelter of these types of technical submission especially when the debt has not been disputed and in fact stand acknowledged in the tripartite agreement, by issuing credit notes, by issuing cheques and other overwhelming evidence on record. In view of the above therefore, we do not find any substance in the objection raised on behalf of the Corporate Debtor and the same are hereby rejected. Petition admitted.
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