TMI Blog2021 (2) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... y, of the Corporate Debtor. Thus, this Tribunal is of the opinion that the Learned Adjudicating Authority has rightly dismissed the Application by giving a liberty to file fresh case in accordance with the provisions of law after delivery of Demand Notice upon the Corporate Debtor as per Rule 5 of the Insolvency and Bankruptcy Rules 2016. However, having regard to the fact that this Application was dismissed way back on 18.06.2020, we request, that on issuing fresh notice to the Corporate Debtor and on filing of a fresh Application under Section 9 of the Code, the Learned Adjudicating Authority shall decide the admissibility or otherwise of the Application as expeditiously as practicable. It is to be noted that we have not expressed any view on the merits of the case. Appeal dismissed. - COMPANY APPEAL (AT) (INSOLVENCY) NO. 775 of 2020 - - - Dated:- 5-2-2021 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Ms. Prachi Johri, Advocate For the Respondent : Mr. Amit Dhall, Advocate JUDGEMENT [ Per; Shreesha Merla, Member (T) ] 1. This Appeal has been filed by the Appellant/Operational Credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, in our opinion, the applicant has not complied with the provision contained under Rule 5 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016, therefore, we are of the considered view that the applicant has not delivered the demand notice as required U/s 8 of the IBC, which is the mandatory provision of law and so on this ground in the absence of delivery of demand notice as required U/s 8 of IBC, the present CP No.(IB)3036/ND/2019 filed by the applicant/operational creditor is not complete and not maintainable and liable to be dismissed. Submissions of Appellant 2. Learned Counsel for the Appellant submitted that the Learned Adjudicating Authority has erred in holding that provisions of Section 8 read with Rule 5 of the Insolvency and Bankruptcy, Rules, 2016 have not been complied with; that the notice sent by speed post returned with an endorsement addressee left without instructions , which service ought to have been held by the Adjudicating Authority as deemed sufficient ; that Section 27 of the General Clauses Act stipulates that the service shall be deemed to be effected by properly addressing and posting the registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il.com Contentions of the Respondent 5. Learned Counsel appearing for the Respondent vehemently contended that the Appellant/Operational Creditor had failed to serve the statutory Demand Notice as per Section 8 of the Code and the documents which have been filed alongwith the Petition under Section 9 itself show that there has been non-service of the Demand Notice; that the Appellant was having the email id of the Directors of the Respondent Company and was also in the knowledge that the Registered Office of the Corporate Debtor is situated at Plot No.- 124, Sector 24, Faridabad, Haryana at which address, the goods supplied by the Appellant were delivered and payments were also made by the Respondent. It is argued that the provisions of Section 27 of the General Clauses Act shall not apply as the Appellant was very much aware that the Respondent has already shifted from the address mentioned in the notice and furthermore the Appellant was required to serve the notice at the address which is mentioned on the invoices issued by the Appellant from time to time. Learned Counsel contended that Section 20 of the Companies Act, 2013 can be made applicable only when the said Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational 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 corporate 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; and (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Where a notice issued by the Tribunal is served by the party himself by hand delivery, he shall file with the Registrar or such other person duly authorised by the Registrar in this behalf, the acknowledgement together with an affidavit of service and in case of service by registered post or by speed post, file with the Registrar, or such other person duly authorised by the Registrar in this behalf, an affidavit of service of notice along with the proof of delivery, (4) Notwithstanding anything contained in sub-rules (1) and (2), the Tribunal may after taking into account the number of respondents and their place of residence or work or service could not be effected in any manner and other circumstances, direct that notice of the petition or application shall be served upon the respondents in any other manner, including any manner of substituted service, as it appears to the Tribunal just and convenient. (5) A notice or process may also be served on an authorised representative of the applicant or the respondent, as the case may be, in any proceeding or on any person authorised to accept a notice Or a process, and such service on the authorised representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 sent by registered post acknowledgment due was sent to the aforenoted Registered Address which was received by the Respondent Company and replied to. Subsequently the Demand Notice under Section 8 dated 23.10.2019 was sent to the New Delhi Address which, has not been received as per the contention of the Appellant Counsel. There are no substantial reasons given by the Appellant as to when the Legal Notice was sent to the Registered Address and was duly served, as to why the Notice under Section 8 was sent to a different address. 8. On a pointed query from the Bench with respect to the receipt of the email addressed to the Respondent Company, the Learned Counsel submitted as an Officer of the Court that the email was in Spam . It is an admitted fact that the Demand Notice dated 23.10.2019 sent through speed post and courier to the New Delhi Address was returned with an endorsement addressee left without instructions . Therefore, the contention of the Learned Counsel appearing for the Appellant that the Learned Adjudicating Authority ought to have relied on Section 20 of the Companies Act 2013, read with Rule 35, is untenable keeping in view that the postal endorsement was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the winding up petition) an Operational Creditor is required to submit all information including the details of the proposed Insolvency professional. 47. An application filed u/s 9 of the I B Code, 2016 without serving notice u/s 8 of the code is not maintainable. Indeed, a mere failure to serve the Demand Notice is not a curable defect. A Bankruptcy notice sets in motion the entire process leading to Bankruptcy and it is to be rigidly and narrowly construed. 11. In the instant case, the documentary evidence establishes that the Appellant was very much in the knowledge of the Registered Address as the Legal Notice dated 18.09.2019 issued prior to the Demand Notice was addressed to the Registered Address and furthermore a perusal of the invoices on record (Annexure A-6) also evidences that the Appellant herein had supplied the goods to the Registered Address of the Respondent Company. 12. We have perused the Master Data relied upon by the Appellant Counsel and also the subject email and note that there is no documentary evidence on record to establish that the email was sent as per the provisions mandated under Rule 5 of the Insolvency and Bankruptc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
