TMI Blog2020 (4) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand notice, he had raised the dispute of unpaid operational debt. But no document is placed before us to show the existence of dispute before issuance of demand notice. Copy of invoices, demand notice, bank statement all other documents are placed before us which clearly shows that the corporate debtor failed to pay off the operational debt of more than Rs. One Lac, despite service of demand notice. It is apparent that the Application for Initiation of Corporate Resolution Process was filed on 15th September, 2018, and impugned invoices were raised between 03rd March, 2017 to 27th March, 2017. The Corporate Debtor made the last payment of ₹ 4,08,205/- partial liability on 20th June, 2017, therefore, it is apparent that petition is within statutory period of limitation i.e. 3 years. Thus we are of the considered opinion that the Adjudicating Authority erred in rejecting the application filed u/s 9 of the Code - Appeal allowed. - Company Appeal (AT) (Insolvency) No. 1010 Of 2019 - - - Dated:- 11-2-2020 - Venugopal M., Judicial Member Kanthi Narahari And V.P. Singh, Technical Member Shailender Kumar, Adv. for the Appellant. Praveen Kumar Aggarwal and Abhis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Indian Evidence Act, 1872 and General clause Act, 1897 are not applicable unless specifically covered in IBC, 2016. For this reason only, the Petition is filed by the Operational Creditor, is liable to be dismissed. This view finds support from the order of this Tribunal dated 20th August in the case of Mascot Petrochem Private Limited v. Midaas Construction Company Private Limited in CP (IB) No. 1692/KB/2018 supra wherein at para 10, this Tribunal has held as under:- Having analysed the facts, we have to look at legal provisions. The Operational Creditor is required to deliver the notice of demand along with invoices to the Corporate Debtor in prescribed form and manner as per the provisions of section 8 read with relevant regulations before filing a petition under section 9 of the I B Code, 2016. The requirement of service of notice of demand under 8 has been provided to grant an opportunity to the Corporate Debtor to communicate its view point before proceeding under section 9 can be initiated and as per the scheme of I B Code, 2016.The strict onus lies on the shoulders of Corporate Debtor to show the existence of dispute before delivery of notice u/s 8, otherwise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 9 of I B Code, 2016, based on the premise of non-service of demand notice, even though the Corporate Debtor has itself admitted the service of demand notice, in its reply to the petition. The point of law which arises for our consideration is as under: Whether deemed service of demand notice under section 8 of I B Code, 2016 is sufficient, to trigger the process U/S 9 of the Code? 7. We have heard the arguments of the Learned Counsel for the parties and perused the record. 8. On perusal of the record, it is apparent that the Application filed under section 9 of I B Code, 2016 has been rejected by the Adjudicating Authority on the ground that the service of demand notice under section 8 of I B Code, 2016 is not established. The contention of the Operational Creditor, that the demand notice sent to the Director of the Company at his residence, is not returned. Thus it should be deemed to be served/delivered, given the General Clauses Act, 1897 and Section 114 of Indian Evidence Act, 1872. 9. The Adjudicating Authority further observed that the I B Code, 2016 is a complete Code in itself and provisions of Indian Evidence Act, 1872 and General Clauses Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of which the default has occurred. Sec 9 of the Insolvency and Bankruptcy Code 2016: (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive 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 for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal; - (a) by hand delivery through a process server or respective authorised representative; (b) by registered post or speed post with acknowledgement due; or (c) Service by the party himself. (3) Where a notice issued by the Tribunal is served by the party himself by hand delivery, he shall file with the Registrar or such other person duly authorised by the Registrar in this behalf, the acknowledgement together with an affidavit of service and in case of service by registered post or by speed post, file with the Registrar, or such other person duly authorised by the Registrar in this behalf, an affidavit Of service of notice along with the proof of delivery, (4) Notwithstanding anything contained in sub-rules (1) and (2), the Tribunal may after taking into account the number of respondents and their place of residence or work or service could not be effected in any manner and other circumstances, direct that notice of the petition or application shall be served upon the respondents in any other manner, including any manner of substituted service, as it appears to the Tribunal just and convenient. (5) A notice or process may also be served on an authorised r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corporate debtor, it is noted that: It is stated that the notice issued under IBC was not in accordance with the applicable provisions and/or Regulations. The applicant is trying to mislead the Hon'ble NCLT as inspite of receiving reply from KSPL to demand notice; as KSPL has given reply to the said demand notice wherein all facts were again repeated whereas the applicant in the affidavit annexed to the application has stated that no reply has been given by the corporate debtor relating to a dispute of unpaid operational debt and are silent about reply received from KSPL 12. Based on the above reply of the corporate debtor, it is apparent that the corporate debtor has not denied the service of demand notice in its reply to the petition. It is apparent that initially, the corporate debtor took the plea that demand notice was not as per applicable Rules and Regulations. The corporate debtor in its reply further stated that it is incorrect to allege that the corporate debtor has not given a reply to demand notice and has not raised the dispute of unpaid operational debt. 13. The Appellant has given sufficient evidence to show the delivery of demand notice. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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