TMI Blog2017 (9) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitting the petition which clearly specifies that if the application made under sub-sec. (2) is complete and there is no repayment of unpaid operational debt and invoice or notice was made to the corporate debtor has been delivered by the operational creditor and no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility and there is no disciplinary proceeding pending against the resolution professional proposed then adjudicating authority has to admit the petition under Clause 5 Sec.9. The application for initiating corporate resolution process against the corporate debtor is rejected due to non-compliance of requisite statutory requirement given in Secs.8 and 9 of the I & B Code - CP NO. 127 (KB) of 2017 - - - Dated:- 17-8-2017 - MR. VIJAI PRATAP SINGH, J. For The Petitioner : Lutful Haque, Adv. For The Respondent : Dherendra Nath Sharma and Sourav Mondal, Advs. ORDER The Applicant Calcutta Ispat Pvt. Ltd. has filed this application under Sec.9 of Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any notice, the application filed under Rule 6 is not maintainable. 6. The corporate debtor has further stated that no action under Sec.9 of the I B Code, 2016 can be instituted without strict compliance of Sec. 8 of the I B Code, 2016 and hence, the application being CP No. 127 of 2017 is liable to be dismissed. 7. It is further stated in the reply that requirement of Sec.8 of the I B Code, 2016 read with Rule 6 of the Adjudicating Authority Rules, 2016 have not been complied with regard to purported claim. It is also alleged that purported claim of the operational creditor is highly disputed and is based on forged and fabricated documents. No sum is due and payable by the corporate debtor to the operational creditor. Corporate debtor has denied and disputed each and every allegations contained in Form 5. It has also been denied and disputed that Ankit Kumar Agarwal has been authorized by the operational creditor to file the said application. 8. It is also alleged that in Part III of Form 5, operational creditor has failed to disclose the name of Insolvency Resolution Professional. With reference to the statements contained in Part IV of the application in Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Form 5 it is stated that the applicant has to attach copy of invoice/demand notice as in Form 3 or Form 4 served on the corporate debtor; copies of all documents referred in the application; affidavit in support of application and copies of bank accounts of the operational creditor. 15. Corporate debtor has specifically alleged in the reply that the application under Form 5 is not maintainable as it is not preceded of notice in Form 4. In absence of any notice issued in Form 4 of Adjudicating Authority Rules, 2016, application filed under Sec.9 read with Rule 6 is not maintainable and no action under Sec.9 of the I B Code can be initiated without a strict compliance of statutory provision of Sec. 8 of the I B Code. 16. In this case it is undisputed that the petition under I B Code was filed without issuing demand notice and application in Form 5 along with demand notice has been filed altogether on the same day i.e. 30/3/2017. Sec.8 of the I B Code lays down the procedure to be adopted for proceeding in Sec.9 of the I B Code. 17. Thus it is clear that initiating corporate insolvency process by an operational creditor under Sec.9 of the I B Code demand notice as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor;- The provisions of sub-section (3) mandates the operational creditor to furnish copy of invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor, an affidavit to the effect that, 9 there is no notice given by the corporate debtor relating to dispute of unpaid operational debt, a copy of the certificate from the 'Financial Institutions' maintaining accounts of the operational creditor confirming that, there is no payment of an unpaid operational debt by the corporate debtor and such other information as may be stipulated. Sub-section (5) of section 9 is procedure required to be followed by Adjudicating Authority . .. the word 'shall' used in sub-section (3) of section 9 of I B Code is mandatory, including ..... X X X X Extracts X X X X X X X X Extracts X X X X
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