9911796707
TMI Blog2017 (11) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the payment committed by the petitioner / Corporate Debtor. The operational creditor has sent notice to the branch office of the respondent at Chennai. The Tribunal has admitted the matter and passed consequential orders. Challenging the non adherence of the mandatory provisions of the rules by the National Company Law Tribunal, the petitioner is before this Court. 3. Mr.M.S.Krishnan, learned Senior Counsel, appearing for the petitioner, would argue that as per Section 8 of the Insolvency and Bankruptcy Code,2016, hereinafter, "the Code", an operational creditor may, on the occurrence of a default, deliver a demand notice of upaid operational debtor, a copy of an invoice, demanding payment of the amount involved in the default to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... infirmity in the order passed by the Tribunal below. He would also submit that the pre-litigation notice was also sent to the petitioner, which was received by them, and, in fact, a reply was also given thereto and, in such circumstances, the petitioner cannot feign ignorance of the proceedings, as they have deliberately failed to appear before the Tribunal, having received the notice. 5. Learned counsel for the respondent would vehemently contend that the jurisdiction conferred under Article 227 of the Constitution of India is not original, but is only supervisory, in nature. In other words, according to him, the power under Article 227 is intended to be used very sparingly and, only in appropriate cases, for the purpose of keepin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict Judge failed and/or neglected to take into consideration the relevant factors or based its decision on irrelevant factors not germane therefor. It could intervene, if there existed an error apparent on the fact of the record or, if any other well-known principle of judicial review was found to be applicable." He would also rely upon another judgment of the Supreme Court in Narender v. Pradeep Kumar, 2005 (5) SCC 372, wherein, it is held that under Article 227 of the Constitituion of India, the quesiton of facts shall not be interfered with, when the tribunal below has given a clear finding on the same. Further, the learned counsel would argue that the order impugned is passed on merits and there is an effective appeal remedy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing payment under sub-section (1) of Section 8, if the operational creditor does not receive any 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. Also, when Sections 8 and 9 of the Code clearly specify the delivery of demand notice on the unpaid operational debtor in such form and manner as may be prescribed, it has to be followed in its true spirit. The corresponding rule to Section 9 of the Code is Rule 6. It clearly specifies that the operational creditor shall dispatch forthwith a copy of the application by registered post or speed post to the registered office of the operational debtor. Rule 5 also wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law. 11. It is clearly held by the Supreme Court in Surya Dev Rai v. Ram Chander Rai, 2003 (6) SCC 675, that this Court can exercise the power under Article 227 when grave injustice is caused; when the Court below fails to exercise the jurisdiction which it does have, such failure occasioning a failure of justice; and the jurisdiction though available is being exercised in a manner, which tantamounts to overstepping the limits of jurisdiction. 12. When a statute prescribes a particular thing to be done in a particular manner, not adhering to the said mandatory provision would cause serious prejudice to a person and he will be deprived of his valuable right to defend the case in time. In the case on hand, the operational creditor is expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
