TMI Blog2018 (6) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... application filed under the provisions of the Insolvency and Bankruptcy Code, 2016 (IBC, 2016) by an operational creditor seeking to initiate the corporate insolvency resolution process (CIRP) as against the corporate debtor for the amount defaulted in a sum of ₹ 1,32,87,228/-. The transaction giving rise to the debt, it is claimed, is in relation to construction of a building at G.T. Road, Bahalgarh, District Sonepat, Haryana and that the estimate cost of project was in a sum of ₹ 2.95 crores for which an agreement was entered into on 26.05.2008 pursuant to which work was undertaken and that prior to its completion and when the construction was at the final stages, the Operational Creditor received a letter dated 15.11.2011 from the Corporate Debtor to stop work and raise the final bill. In accordance with the instructions of Corporate Debtor work was stopped and a final bill was raised in a sum of ₹ 1,32,87,228/- on 14.12.2011. Despite several attempts the said amount remains unpaid as of date. Police complaints have also been lodged against the Corporate Debtor in 2012 as well as 2013 without much avail. In the circumstances under the earlier dispensation, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to the registered office of the Corporate Debtor however, door always found locked as intimated by the postal authorities. It is to be noted here that tracking report or returned cover containing the postal endorsement has not been filed. 5. Be that as it may, however before delving into the decisions as cited by the Learned Counsel for the Petitioner and their applicability to the provisions of IBC, 2016, as it is noticed that the decisions of the Hon'ble Supreme Court cited above relates to the provisions of Section 138 of the Negotiable Instruments Act, 1881 as amended and the decision of the Hon'ble High Court, Delhi relates to the erstwhile provisions of Companies, Act, 1956 in relation to service of statutory notice, firstly it will be in order to consider the provisions of IBC, 2016 in this regard and the applicability of the said decisions cited to the provisions of IBC, 2016. Section 8 of IBC, 2016 read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ('AAA' Rules) and the forms prescribed thereunder, namely, Form 3 Form 4 lays down both the substantive law and procedural compliances required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 8 as well as Section 9 of IBC, 2016 as well as Rule 5 of 'AAA' Rule have been considered in detail by the Hon'ble Supreme Court in the case of Mobilox Innovations Private Limited -vs- Kirusa Software Private Limited in Civil Appeal No. 9405 of 2017 and in particular the scheme of IBC, 2016 as applicable to Operational Creditors and the applications filed by them and as to how this Tribunal is required to deal with an application in the course of its admission or rejection as given in Section 9(5)(i) or 9(5)(ii) of IBC, 2016. Paragraph 24 of the judgment of Hon'ble Supreme Court in Mobilox Innovations (P.) Ltd. case (supra) as cited above deals with the Notice of Demand and as well as Notice of dispute and the part relevant to the instant case relating to Notice of Demand/Default is reproduced hereunder:- 24. The scheme Under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e., on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 15 further days and no more. 8. Going further at Paragraph 29, the Hon'ble Supreme Court in Mobilox Innovations (P.) Ltd. (supra) case has stressed with great emphasis the delivery of the Notice of Demand under Section 8 of IBC, 2016 read with the relevant rules and the delivery of which upon the Corporate Debtor virtually activates the ticking of clock in relation to the whole process as seen above and stated by the Hon'ble Supreme Court as follows: - 29. It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form. 10. It is also pertinent to note that the Hon'ble Supreme Court while considering IBC, 2016 vis-a-vis other enactment in Innoventive Industries Ltd. v. ICICI Bank and Ors Civil Appeal Nos. 8337-8338 of 2017 and while drawing a distinction between a Code and an ordinary enactment has brought out succinctly the self contained nature of IBC, 2016 after a detailed discussion and since the decision is material is reproduced below as contained in paragraph 52 and paragraph 53 of the said judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 is a consolidating and amending statute and is for all purposes a code relating to arbitration. In dealing with the interpretation of the Indian Succession Act, 1865, the Privy Council in Narendra Nath Sircar v. Kamlabasini Desai : (1896) LR 23, IA 18] observed that a code must be construed according to the natural meaning of the language used and not on the presumption that it was intended to leave the existing law unaltered. The Judicial Committee approved of the observations of Lord Herschell in Bank of England v. Vagliano Brothers [(1891) AC 107,144-145] to the following effect: I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirel ..... 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