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TMI Blog2019 (11) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... btor when they came to know that the Operational Creditor is one of the lending and major supplier of P.T. bags. The Corporate Debtor well accepted delivery of the Products at their premises as evidenced through Logistics/Docket Receipts dated 04.04.2014, 19.04.2014, 27.05.2014, 05.06.2014, 26.08.2014, 16.09.2014 and 02.06.2015. Upon delivery of its Products the Petitioner Company raised invoices dated 02.04.2014, 19.04.2014, 27.05.2014, 05.06.2014, 26.06.2014, 10.07.2014, 19.07.2014, 26.08.2014, 16.09.2014, 14.02.2015, 19.02.2015 and 02.06.2015, as reflected in Corporate Debtor's Ledger Account. The invoices, amounting to Rs. 23,87,330/- is due and payable by the Corporate Debtor to the Petitioner. The Petitioner has, therefore, filed this petition as an Operational Creditor praying for initiation of Corporate Insolvency Resolution Process of the Corporate Debtor for its inability to liquidate their claim of Rs. 23,87,330/-. 3. The Operational Creditor issued the demand notice dated 21.09.2018 as required under Section 8 of the Code was issued, demanding a total sum of Rs. 23,87,330/- which returned unserved. 4. In view of the Corporate Debtor's failure to reduce or liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 1 [payment] of the operational debt in respect of which the default has occurred." "Section 9. Application for initiation of corporate insolvency resolution process by operational creditor - (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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven days of the date of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section." 9. Mere plain reading of the provisions shows that under Section 8 of the Code on the occurrence of default, the Operational Creditor at first is required to deliver the demand notice of unpaid Operational Creditor and liberty is given to the Corporate Debtor to bring the notice of the Operational Creditor regarding existence of the disputes and the payment of or other unpaid Operational Debt within a time of 10 days of the receipt of the demand notice. Whereas Section 9 of the Code says that after the expiry of period of 10 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 the payment from the Corporate Debtor or notice of the dispute has not been raised by the Corporate Debtor then the Operational Creditor may file an application before the Adjudicating Authority. When we read these two provisions together than it can be said that CIRP can only be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that debt of Rs. 23,87,330/- fell due on the Corporate Debtor on 23.07.2016, when no reply to the e-mail dated 23.07.2016 was received from the Corporate Debtor. Hence, the balance amount of Rs. 23,87,330/- stands admitted by Corporate Debtor. It was further submitted that the debt further fell due as on 18.08.2016, when an intimation via e-mail was sent to Corporate Debtor with regards to the visit of Director of the Operational Creditor to Delhi, but despite of intimation no heed or attention was paid to the said email too nor even replied. Another email was sent on 23.09.2016, with regard to C Form, which was also not replied by the Corporate Debtor. 13. At this juncture, we would also like to consider the submissions of the Ld. Counsel for the Operational Creditor that the Operational Creditor has taken a step for initiation of proceedings under Section 9 of the Code from the date when he sent the Demand Notice i.e. on 21.09.2018 and filed the application on 12.03.2019 and if the limitation is calculated from 23.07.2016, the date when the Operational Creditor sent the e-mail and when no reply to the e-mail dated 23.07.2016 was received from the Corporate Debtor, then the same ..... 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