TMI Blog2020 (10) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions, we are of the considered 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. In the present case, since it is specifically mentioned in Section 8(2) of the Code that within ten days from the date of the receipt of the demand notice, the corporate-debtor is required to bring to the notice of the operational-creditor, the existence of dispute or the documents regarding the payment of debt, therefore, we have no option, but to hold that since the corporate-debtor fails to give the reply of the demand notice and raised the disputes, hence after his appearance in response to the notice, he cannot raise it by filing the reply to the application. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cy and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, was issued by the Operational Creditor on 04.06.2018, demanding payment of ₹ 74,10,533/- (Rupees Seventy-Four Lacs, Ten Thousand, Five Hundred and Thirty-Three) only, along with interest of 18% p.a. in respect of unpaid operational debt due from the Corporate Debtor. The Corporate Debtor failed to bring to the notice of the Operational Creditor, the existence of a dispute with regard to the unpaid operational debt or the repayment of the same even after ten days from the date of receipt of demand notice, as per requirement of Section 8(2) of the Insolvency and Bankruptcy Code. 3. Pursuant to the Court notice issued to the Corporate Debtor, reply was filed and it was submitted by Corporate Debtor that:- i. that first the Applicant herein sent a civil recovery notice dated 05.01.2018 in that notice the Applicant mentioned about some annexures but those annexures were not attached with the notice. In his reply dated 01.02.2018, respondent herein asked to Applicant to provide those annexures, but instead of providing them the Applicant filed this application which is barred from any merit. ii. Ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Operational Creditor has filed rejoinder and asserted the following contentions: i. That the submissions made by the Respondent stating that since the Letter of Intent was never signed by them, the same was not valid, is without any legal standing. The concept of implied contract is recognized under Section 9 of the Indian Contract Act, 1872, as on in which there are actual proposal and acceptance though made otherwise than in words. Even though the Letter of Intent was not signed, the same was acted upon for a long time and hence, the same fulfill the requirements of an implied contract and hence, cannot be said to be invalid now. ii. That the denial of the amount under claim is fraudulent and deceitful as the claim is supported by the invoices as raised by the Applicant from to time. Copies of the invoices have duly been annexed alongwith the main Application. iii. That the submission made by the Respondent stating that the demand notice was not received by them, only aims to mislead the Tribunal. Proof of delivery of the demand notice to the Respondent, as received from the postal department, has already been placed on record before the Tribunal vide diary numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he month of September, 2017, with respect to the manpower requirement in the warehouse for the month of September, 2017. 5. We have heard the Learned Counsel appearing for the applicant as well as Corporate Debtor. The Learned Counsel appearing for the applicant, in course of his argument, submitted that the cause of action started from the month of June 2017, when there is a default of the Corporate Debtor in making payments towards the various invoices raised by Operational Creditor. He further submitted that the Operational Creditor has received the payment of ₹ 46 lakhs, out of ₹ 1,02,69,753/- and in support of that, he enclosed the bank statement to show that part payment was made by the Corporate Debtor, the relevant portion of the statement is at page 161 of the paper book. He further submitted that when the default occurred, the Operational Creditor has sent demand notice on 4th June, 2018 and the same was delivered. He further submitted that he has enclosed the postal receipt which is at page 171. He further submitted that although he has not enclosed the delivery report in the original application but by filing the supplementary application, he annexed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would also been provided by email annexed with the reply. 9. 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 as well as written submissions 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. 10. Whereas the Operational Creditor by filing the supplementary affidavit produce the postal document to show that the demand notice was duly delivered on the registered address of the Corporate Debtor, therefore, before going into the merit of the case of the parties we would like to refer the provision contained under Section 8 and 9 of the IBC, 2016 and the same is quoted below: - Section: 8. Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (b) There is no 3[payment] of the unpaid operational debt; (c) The invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) No notice of dispute has been received by the operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 provisions, we are of the considered 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. 12. At this juncture, we would also like to refer the decision reported in the case of Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 271, and we find that Hon'ble Supreme Court in Para 14 of the judgment held that: It is equally well sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Further: (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the dale of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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