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TMI Blog2017 (5) TMI 1477X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. By one of the order the Adjudicating Authority held that the order is being passed, within 14 days, as per Section 9 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'I&B Code' for short). By the other order dated 12th April 2017, the Adjudicating Authority initiated Insolvency Resolution Process by admitting the application, appointed interim resolution professional, ordered Moratorium and passed the following directions: "14. (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- (a) the institution of suits or continuation of pending suits or proceedings ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of such approval or liquidation order, as the case may be. 10. The insolvency resolution professional shall also take steps and perform his duties in terms of Section 15, 1 7 & 18. All personnel of the Corporate Debtor including its promoters are expected to extend full cooperation to the interim resolution professional as is provided by Section 1 9 and any other provisions of the Code. The insolvency professional shall submit his report to us within four weeks. 11. The petition stands disposed of in above terms. " 2. Counsel for the Appellant/ Corporate Debtor submitted that the Adjudicating Authority initiated the insolvency process under section 9 of the I & B Code, 2016, and admitted the case, though the Application pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in suchform and manner as may be prescribed. " 5. Rule 5 of I & B Rules also mandates an Operational Creditor to deliver the Corporate Debtor a demand notice in Form 3 or a copy of an invoice attached with a notice in Form 4, as quoted below: "5. Demand notice by operational An operational creditor shall deliver to the corporate debtor, the following documents, namely. (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Fortn 4. (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice or invoice demanding payment under sub- section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such forn and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnis h- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section" Section 230 reads as follows: "The Board may, by general or special order in writing delegate to any member or officer of the Board subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Code (except the powers under section 240 as it may deem necessary" 8. Admittedly, no notice was issued by Operational Creditor under section 8 of the I & B Code,2016. Demand notice by Operational Creditor stipulated under Rule 5 in Form 3 has not been served. Therefore, in absence of any expiry period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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