TMI Blog2020 (6) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of demand notice there was a pre-existing dispute regarding raising of invoices for the financial year 201718, and partially for 2016-17, on the pretext that the Corporate Debtor had already informed that no services were required. In the instant case, after receiving the demand notice Corporate Debtor within ten days of receipt of the demand notice raised the dispute of the unpaid operational debt. Therefore, affidavit in compliance of Section 9(3)(b) could not be submitted. Thus, it is apparent that there is no default in not providing the affidavit in compliance of Section 9(3)(b) of the Code. Time Limitation - HELD THAT:- On perusal of the record, it is crystal clear that about one year before the issuance of demand notice, the Corporate Debtor complained about the quality of service to the Operational Creditor and communicated that he has not provided services after 2015 and also informed that their services are no longer required. Thus, the Adjudicating Authority/National Company Law Tribunal, New Delhi Bench has rightly rejected the Application filed under Section 9 of the Insolvency and Bankruptcy Code 2016 - appeal dismissed. - COMPANY APPEAL (AT) (INSOLV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second reply to the demand notice on 17th April 2019 alleging a pre-existing dispute. 6. The Learned Adjudicating Authority rejected the Application filed under Section 9 of the Insolvency and Bankruptcy Code 2016 mainly on the ground of pre-existing dispute and for non-compliance of Section 9(3)(b) of the Code. An appeal has been filed primarily on the ground that the Adjudicating Authority rejected the petition on the ground of a pre-existing dispute between the parties, before the receipt of the demand notice of the unpaid operational debt. The Adjudicating Authority has further failed to consider that the compliance under Section 9(3)(b) is not mandatory. 7. Heard the arguments of the Learned Counsel for the parties and perused the records. 8. It appears that the Adjudicating Authority has rejected the Application filed under Section 9 of the Code on the ground of pre-existing dispute between the parties and further on the ground that the Applicant failed to comply the statutory provision of Section 9(3)(b) of the Code. 9. Admittedly, demand notice in Form-4 is issued on 20th March 2019. The said notice was delivered on 23rd March 2019, which is evident from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending invoices as on January 19^2018. This statement pertains to the financial year 2015-16, 2016-17 and 2017-18. In reply to the said mail, the Corporate Debtor has submitted that the account had already been settled with Mr Anumod Sharma and further no services were required. It also transpired that the Corporate Debtor raised a question on raising the bill for the year 2017-18, partially for the year 2016-17. It is also apparent that the Corporate Debtor advised to the Operational Creditor not to raise, such kind of bills and take clarity from Mr Anumod Sharma, as the Company is not liable for the same. 12. Thus, it is clear that before issuance of demand notice there was a pre-existing dispute regarding raising of invoices for the financial year 201718, and partially for 2016-17, on the pretext that the Corporate Debtor had already informed that no services were required. 13. The Learned for the Operational Creditor has placed reliance on the judgment of the Hon'ble Supreme Court in Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd. reported in 2018 (1) SCC 353 wherein it has held that: - 51. It is clear, therefore, that once the operational creditor has f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not filed the affidavit in compliance of provision Section 9(3)(b) of the Code. Section 9(3) of the Insolvency and Bankruptcy Code 2016 provides that: The Operational Creditor shall, along with the application furnish... (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. In the instant case, the Operational Creditor has not filed an affidavit in compliance of Section 9(3)(b) of the Code. The Counsel for the Operational Creditor submitted that the Adjudicating Authority has also dismissed the Application for non-compliance of the statutory provision of Sec 9 (3)(b) of the Code. But this cannot be ground of dismissal since the Hon'ble Supreme Court has clarified in Macquarie Bank v. Shilpi Cable Technologies Ltd. [2018] 2 SCC 674, para 15 that such affidavit is not mandatory when the Corporate Debtor has responded to the demand notice which the Respondent had in the present case. Moreover, even if Learned Adjudicating Authority thought that Section 9(3)(b) affidavit was required, it being a curable defect, as held in Surendra Trading Company v. Juggilal Kamlapat, [2017] 16 SCC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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