TaxTMI 
TaxTMI 
2020 (9) TMI 718
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Manager Sales and Marketing at the registered office of the Operational Creditor for transportation of their consignments throughout India by the Operational Creditor. The Operational Creditor quoted their rates as well as the terms and conditions for the transportation of the goods of the Corporate Debtor. The Corporate Debtor clearly understood and accepted the offered rates as well as the other terms and conditions of the Operational Creditor. Our Company entered into a contract with Servel India Pvt. Ltd. for Logistics for the routes mentioned in the Contract dated 01st July, 2017 and the said Contract, at the instance of Servel India Pvt. Ltd., was renewed/amended from time to time. After the Corporate Debtor accepted the offer of the Operational Creditor through written contract, the Operational Creditor started the business dealings with the Corporate Debtor. In 2017, the officials from the Corporate Debtor Company also visited the Operational Creditor Company at the registered office in order to be ensured about the infrastructure of the Operational Creditor Company. They met the Senior Management persons as well before striking the deal. Thus, written contract was entered....
X X X X Extracts X X X X
X X X X Extracts X X X X
....35/- towards the freight charges to the Operational Creditor. The said amount is payable at Delhi at the registered office of the Operational Creditor. Since, the Corporate Debtor have failed to pay the same inspite of repeated requests and demand notice, they are also liable to pay interest @ 18% per annum on the aforesaid amount. 3. The present application is within the period of limitation as prescribed in law. 4. Pursuant to the Court notice issued to the Corporate Debtor, reply was filed and it was submitted by Corporate Debtor that:- i. The present reply is being filed pursuant the liberty granted by this Tribunal vide order dated 04.12.2019 and to oppose the admission of the petition filed by the alleged operational creditor for appointment of the IRP in terms of the IBC Code, 2016. ii. At the outset, the Corporate Debtor denies the claims made by the alleged Operational Creditor in its application for initiating the Corporate Insolvency Resolution Process under the IBC Code, 2016 save and except specifically admitted herein. iii. It is submitted that present application has been filed without having any cause of action in the favour of the in as much as Petitioner i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....directors. The proof of service is already filed by the Operational Creditor in the present proceedings. It is submitted that all the legal requirements of IBC have been complied by the Operational Creditor and the present petition is liable to allowed as prayed for. 6. We have heard the Learned Counsel appearing for the Operational Creditor as well as Corporate Debtor. In the light of the submissions raised on behalf of the parties, when we have gone through the application, reply and rejoinder to the reply filed on behalf of both the parties then we find that it is admitted fact that the Corporate Debtor has not sent the reply as required under Section 8(2) of the IBC, 2016, according to which, the Corporate Debtor shall within a period of 10 days of the receipt of demand notice or copy of invoices mentioned in sub section (1) bring to the notice of the Operational Creditor, the existence of dispute or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such disputes. 7. Whereas the Operational Creditor in its application has produced the postal document to show that the demand notice was duly delivered....
X X X X Extracts X X X X
X X X X Extracts X X X X
....porate 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 corporate debtor, if available;] 2[(d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and (e) Any other proof confirming that there is no payment of any unpaid operational debt by the corporate debtor or such other information, as may be prescribed.] (4) An operational creditor initiating a corporate insolvency resolution process under this section may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) Admit the application and communicate such decision to the operational creditor and the corporate debtor if - (a) The application made under sub-section (2) is complete; (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y in that case the Operational Creditor may file an application for initiation of the CIRP. If we shall read these two provisions together then we find, before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as required under Section 8(1) of the Code, then he cannot invoke the provision under Section 9, rather he can invoke the provision of Section 9 only, when Corporate Debtor fails to raise the existing of disputes or produce the document to show that unpaid operational debt has been paid within ten days of the receipt of the demand notice. Therefore, on the basis of aforesaid provision, we are of the view that Section 8 and 9 cast a duty upon the operational-creditor as well as Corporate Debtor to act as per Section 8 and if they fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the Corporate Debtor can be taken into consideration. 9. At this juncture, we would also like to refer the deci....