TMI Blog2017 (9) TMI 1077X X X X Extracts X X X X X X X X Extracts X X X X ..... tor. Compliance of this provision is mandatory and not discretionary. Since the operational creditor has failed to comply with the statutory provision so on the above grounds the petition cannot be admitted. It is pertinent to mention that this petition has been filed on account of unpaid salary dues from May, 2016 to February, 2017 and total claim of the operational creditor is ₹ 35,00,000/-. It is also pertinent to mention that the claim of the petitioner is based on the basis of order passed by NCLT on 18/8/2016. This clearly shows that the claim of the operational creditor is mainly on the basis of existing dispute between the parties, which is pending in NCLT. Sub-section 3(b) of Sec.9 provides that operational creditor has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p Kumar Roy Chowdhury, Registration No.IBBI/IPA/00l/IP-00112/2016-17/1158 of 8B, Middleton Street, 6A, Geetanjali Building, Kolkata 700 071, email id pkrc@mancshwariassociates.com. 3. The applicant has stated that the total amount of debt is ₹ 35,00,000/- on salary account from May 2016 to February 2017. 4. The applicant demanded the aforesaid amount from the corporate debtor by demand notice dated 25/3/2017 which was delivered to the corporate debtor on 31/3/2017. The applicant has filed proof of delivery of demand notice along with the application which is Annexure C. In the said demand notice the applicant requested the corporate debtor to pay the due amount within ten days from the date of receipt of the Demand Notice, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears that application has been filed under Sec.9 of the Insolvency Bankruptcy Code read with Rule 6AA Rules, 2016. 10. The applicant has stated in the application that the alleged amount is on account of salary dues, due to non-payment of salary from May 2016 to February 2017. The applicant has filed Annexure C copy of the demand notice with the copies of details of computation chart of salary account, as Annexure D. Applicant has also annexed the copy of bank statement as Annexure I along with copy of Form 26AS, Form 16, computation chart of default and copy of order passed by NCLT, Kolkata Bench on 18/8/2016. 11. Applicant claims that he has issued demand notice, Annexure C but corporate debtor did not make the payment, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illed: - If the application made sub-rule (2) of Sec.9 is complete, there is no repayment of unpaid operational debt; Notice of invoice of payment to the corporate debtor has been delivered by operational creditor; There is no disciplinary proceeding pending against the IRP. Only on the fulfilling the above requirements, the petition can be admitted under Sec.9 of the IB Code, 2016. 12. In this case admittedly the petitioner has not given any document to prove the date of service of notice on the corporate debtor. Operational creditor has also failed to file affidavit to show that there is no compliance of sub-clause (c) of Clause (5) Rule 9. There is also no compliance of sub-clause (d) of Clause (5) of Rule 9, because operational cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that case. In case of pre-existing dispute, provision of Sec.9 of IB Code cannot be invoked. 15. In view of the law laid down in case of kirusa Software Pvt. Ltd. vs. Mobilox Innovations Pvt. Ltd. and Uttam Galva Steel Ltd . it is clear that dispute existed much prior to purported notice under Sec.8 read with sub-section (5) of the Code. 16. Hon'ble NCLAT has further upheld in the above case while sub-section (2) of Sec.8 deals with the existence of a dispute, sub-section (5) of Sec.9 does not confer and discretionary power on adjudicating authority to invoke efficacy of the dispute. It apprehends the adjudicating authority from proceeding further if there is a genuine dispute raised before any court of law or authority or p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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