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TMI Blog2021 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority has observed as follows; "9. In the light of aforesaid discussion, when we shall consider the case of the applicant, then we are of the considered view that under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, there are two modes for sending demand notice, one is, either at the registered office by hand, registered post or speed post with acknowledgement due, or second one, by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor, and on the basis of the facts stated in the application, we find, as per rule 5(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, the applicant had to send the demand notice either by hand, through registered post or speed post with acknowledgement due at the registered office of the Corporate Debtor or by electronic mail service to a whole time director, designated partner or key managerial personnel of the corporate debtor, and on the basis of the facts stated in the application, we find, the applicant had sent the demand notice on 23.10.2019 through the speed post, as well as thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ordinary course of post." 3. It is the case of the Appellant that, that the email was addressed to the email id of the Company available in the master data of the Corporate Debtor and the Company being a legal person it has to be necessarily be construed that the email id is that of the Key Managerial Personnel. Learned Counsel placed reliance on Section 20 of the Companies Act 2013, which permits submission of a notice upon an officer of a Company by electronic means. Section 20(1) of the Companies Act 2013 is reproduced as hereunder; "20(1). A document may be served on a company or an officer thereof by sending it to the company or the officer at the registered office of the company by registered post or by speed post or by courier service or by leaving it at its registered office or by means of such electronic or other mode as may be prescribed: Provided that where securities are held with a depository, the records of the beneficial ownership may be served by such depository on the company by means of electronic or other mode." 4. Learned Counsel further contended that the term 'Officer' as defined under Section 2(59) includes any Director, Manager or Key Managerial Pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing the Company Petition (IB) No. 495/ND/2020, on the ground that the Appellant has not complied with the provisions of Section 8 of the Code read with Rule 5 of the Insolvency and Bankruptcy Rules, 2016. 7. For better understanding of the case the relevant Sections of the Insolvency and Bankruptcy Code, 2016 are reproduced as hereunder; "Sec. 8: (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if-- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven 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." National Company Law Tribunal Rules, 2016: Rule 38 Service of Notices and processes.- (1) Any not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g payment referred to in sub-section (2) of Section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any. 6. Application by operational creditor.--(1) An operational creditor, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under Section 9 of the Code in Form, 5, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) The applicant under sub-rule (1) shall dispatch forthwith, a copy of the application filed with the Adjudicating Authority, by registered post or speed post to the registered office of the corporate debtor. Thus the language of Section 9 leaves no doubt that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 read with Rule 35 of the Companies Rule, 2014. The facts in the instant case are different as, at the cost of repetition, the notice was not 'unclaimed' but rather it was not delivered to the Registered Address and had returned with an endorsement 'addressee left without instructions'. 10. This Tribunal in 'Mr. Shailendra Sharma Director of R&M International Pvt. Ltd.' V/s. 'Ercon Composites & Ors.' Company Appeal (AT) (Ins) No. 159 of 2020 while dealing with a similar issue held as follows; "45. It is to be pointed out that an 'Operational Creditor' shall deliver to the 'Corporate Debtor' a Demand Notice in Form-3 or a copy of an invoice attached with a notice in Form-4 as per Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Demand Notice or the copy of the invoice demanding payment referred to in sub-section 2 of section 8 of the code may be delivered to the 'Corporate Debtor' at the registered office by hand, registered post or speed post with acknowledgement due or by electronic mail service to a whole time Director or designated partner or key managerial personnel, if any, of the 'Corporate Debtor'. Besides these, a copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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