TMI Blog2019 (12) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8 of IBC, the word 'deliver the notice' is not mentioned, rather it is mentioned that 'the payee or the holder makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque', where in Section 8 of IBC, the word, 'deliver the notice upon unpaid operational creditor' is mentioned. There is a difference between these two Sections, Section 8 of TBC and Section 138(b) of the N.I. Act regarding the service of notice upon the person concern - The purpose to deliver the notice is to give an opportunity to the Corporate Debtor to raise a dispute or negotiate with the operational creditor and that was the intention of the legislatures, that is the reason the word 'delivery' has been given in place of 'sending or giving the notice upon the person concern'. The applicant had sent the demand notice only through the registered post, which was returned unserved and he has neither delivered it personally nor send the demand notice through electronic mail service to a whole time director or designated partner or key managerial personnel of the corporate debtor - the applicant has not complied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Creditor, as particularly described at their Plant/Office, which is as under :- (1) Pant Nagar, Plot No.24, Sector-2, IIE Pant Nagar, U.S. Nagar, Pin: 263153, Uttarakhand, India. (2) Kala Amb Unit No.1, Plot Nos.16-17, Industrial Area, Trilokpur Road, Neham-Sirmur, Himachal Pradesh, Pin: 173030. (3) Kala Amb Unit No.3, Plot No. 15, Industrial Area, Trilokpur Road, Neham-Sirmur, Himachal Pradesh, Pin: 173031. IV. However out of the above said Purchase Orders, the Corporate Debtor have failed to make payments to the Operational Creditor for the 89 Purchase Orders placed by Corporate Debtor. A copy of the list of the said 89 Purchase Orders are annexed as ANNEXURE- 12 and ANNEXURE 13 (1-89) with the petition. V. Thereafter, Operational Creditor sold, supplied and delivered the said goods as requested by Corporate Debtors as per their 89 Purchase Orders at their respective Plants/Office at Pant Nagar, Kala Amb at Plot No. 15 and Kala Amb at Plot Nos. 16-17 respectively, which is specified therein along with 316 invoices at Corporate Debtor Plants at Pant Nagar and 2 Plants at Kala Amb respectively. There is no dispute regarding the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8377; 9,14,44,593,26/- (Rupees Nine Crores Fourteen Lakhs Forty Four Thousand Five Hundred Ninety Three and Twenty Six Paise Only), which is due from 08.04.2018 till 01-08-2019 together with further interest @ 24% p.a. 3. I have heard the learned counsel appearing for Applicant/Operational Creditor. 4. The present case has been filed on behalf of Operational Creditor against the Corporate Debtor U/s 9 of the I B Code and before filing the present petition, the Operational Creditor had sent the demand notice as required U/s 8 of the IBC, which is enclosed at page No.21 (Annexure No.3). 5. He further submitted that the said notice was sent by registered post with AD on 29.06.2019 to the Corporate Debtor but the same was returned with noting 'Office Closed'. Thereafter, the Operational Creditor had again sent another notice on 19.07.2019 by the registered post with AD on the address of the registered office of Corporate Debtor available on the MCA portal U/s 8 of the IBC, but the said demand notice was also returned unserved with an endorsement 'Not Known'. 6. He further submitted that the Operational Creditor twice attempted to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity, if any. 11. It is a settled principle of law that there is a difference between the procedure for initiation of CIRP by the Financial Creditors U/s 7 of the IBC and the Operational Creditors U/s 9 of the IBC. So far as the Financial Creditor is concerned, as per Section 7 of the IBC, there is no need to deliver the notice before the initiation of CIRP and that has been decided by the Hon'ble Apex Court in Innoventive Industries Ltd. v. ICICI Bank [2017] 143 SCL 625 : The scheme of Sec 7 stands in contrast with the scheme under Sec 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in sec 8(1) of the Code. Under Sec 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Sub-Section (I), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing -i.e., before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the legislatures, that is the reason the word 'delivery' has been given in place of 'sending or giving the notice upon the person concern'. 15. Therefore, in my opinion under the facts and circumstances of the case, the decision upon which the applicant has placed reliance is not applicable. Similarly, the facts of other decisions of the Hon'ble Supreme Court is also different from the facts of the case in hand, therefore, that would also not support the contention of the learned counsel appearing for the applicant. 16. Now, I shall consider the decision passed by the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 684 of 2018 in the matter of Alloysmin Industries (supra), I have gone through the decision upon which the applicant has placed reliance and on careful consideration of the same, I find, in that case the Hon'ble NCLAT in para 6 has held as under :- In view of aforesaid facts we hold that the Adjudicating Authority erred in rejecting the application under Section 9 on wrong presumption that demand notice is to be served on the Registered Office of the Corporate Debtor and not on Corporate Office (Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by hand, registered post or speed post with acknowledgement due, or second one, by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor, and on the basis of the facts stated in the application, I find, the applicant had sent the demand notice only through the registered post, which was returned unserved and he has neither delivered it personally nor send the demand notice through electronic mail service to a whole time director or designated partner or key managerial personnel of the corporate debtor. 20. So, under such circumstances, in my opinion, the applicant has not complied the provision contained under Rule 5 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016, therefore, this Tribunal is of the considered view that the applicant has not delivered the demand notice as required U/s 8 of the IBC, which is the mandatory provision of law and so on this ground in the absence of delivery of demand notice as required U/s 8 of IBC, the present CP No.(IB)328/ALD/2019 filed by the applicant/operational creditor is not complete and not maintainable and liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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