TMI Blog2020 (6) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and in this e-mail it is specifically mentioned that the notice which the Applicant sent was returned with a remark Left and thereafter, the Applicant sent the demand notice through e-mail amitexppr@hotmail.com . At this juncture, we would like to refer page 40 of the application i.e. master data enclosed by the Applicant as annexure P2/which also shows the name of the directors of the Corporate Debtor company but in the master data, the e-mail ID of the director is not given rather one e-mail ID of which the applicant claimed to sent the demand notice is given but from the perusal of the same, it can not be said that this e-mail ID is one of the persons as required under Rule 5(2) of the Adjudicating Authority Rule. Mere plain reading of the rules shows that the e-mail ID on which the Applicant had delivered the demand notice was neither of a whole time director or designated partner or key managerial personal of corporate debtor, therefore, we have no option but to hold that the demand notice as required under Section 8(1) of the IBC has not been delivered, therefore, the claim of the Applicant that no reply as required under Section 8(2) of the IBC is given by the Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial, operational supplies, industrial etc. for increase their profitability by demand aggregation and providing goods material at competitive prices by directly buying from large manufactures and enabling its customers to increase business efficiencies against cash payment or on credit basis. 3. Brief Facts of the case are as follows: i. In February 2011, the Corporate Debtor through its Director approached the Operational creditor and requested to supply various chemicals/materials. It was agreed between the Operational Creditor and Corporate debtor that the Corporate debtor will make payments in time upon raising of necessary invoice and as such timely payments was essence of the contract and was agreed that payment would be made within 30 days from the receipt of invoices. ii. Purchase order dated 17.02.2011 was placed on the operational creditor by the corporate Debtor. Corporate Debtor through its purchase order offered to make payment within a period of 45-60 days. However, the payment was agreed to be made within 30 days from the date of invoice. iii. The corporate debtor placed another purchase order dated 25.02.2011. iv. The goods were supplied by the oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate Debtor and as recorded in its undertaking recorded and consent decree passed by the Ld. ADJ Saket dated 25.10.2018 as per settlement agreement executed on 16.08.2018 between both the parties. x. The amount claimed to be due is ₹ 7,50,000/- towards principal amount towards goods received by the corporate debtor and ₹ 1,35,000/- towards penalty of ₹ 5,000/- per installment per month as per undertaking given by the Corporate Debtor and recorded vide order dated 25.10.2018 by Ld. ADJ-03, SE/Saket/Delhi in CS No. 6912 of 2016 in the case of Ashok Agarwal vs. Amitex Polymers Pvt. Ltd. and Anr. Thus, the total dues is ₹ 8,85,000/-. xi. The Operational creditor vide its letter dated 11.03.2019 issued demand notice to the Corporate debtor. xii. The Operational creditor sent a statutory notice dated 01.04.2019 via email on the registered email address of the respondent company as available on the official web portal of ROC. 4. The Corporate debtor contended the following in its reply dated 26.12.2019: i. The Petitioner does not fall under the definition of ''Operational Creditor u/s 3(23) of the Insolvency and Bankruptcy Code, 2016 as hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the parties and a consent decree was passed on 25/10/2018 by the Ld. Additional District Judge. Saket District Courts. He further submitted that thereafter a Demand Notice was issued to the CORPORATE DEBTOR and the same was duly delivered which is evident from the tracking report enclosed at page No. 57 of the application. He further submitted that no reply has been filed by the CORPORATE DEBTOR as required under Section 8(2) of IBC within ten days from the date of the delivery of the demand notice, So the CIRP may be initiated against the CORPORATE DEBTOR. 7. On the other hand. Ld. Counsel for the CORPORATE DEBTOR submitted that the Applicant is not the Operational Creditor in terms of Section 3(23) of the IBC. He further submitted that the present application filed by the Applicant is not maintainable. He further submitted that the Applicant has concealed the facts that the matter has been settled outside the court and a post dated cheque has already been given to him. Therefore, the said amount is not debt under Section 3(11) of the IBC. He further submitted that the Corporate Debtor had not received any demand notice dated 11/03/2019. He further submitted that since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtra., Part II, Sec. 3, No. 828 (E), dated 30th Nov., 2016 (w.e.f. 01.12.2016). (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. 9. Mere plain reading of the rules shows that the e-mail ID on which the Applicant had delivered the demand notice was neither of a whole time director or designated partner or key managerial personal of corporate debtor, therefore, we have no option but to hold that the demand notice as required under Section 8(1) of the IBC has not been delivered, therefore, the claim of the Applicant that no reply as required under Section 8(2) of the IBC is given by the Corporate Debtor is not liable to be accepted. 10. At this juncture, we would like to mention this fact that the Applicant admit that he filed the present application for the amount which has been settled in Civil Suit No. 6912/2016 and on the basis of a consent decree, the said amount became due and for that amount, the present application has been filed. Therefore, we would like to consider this whether decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al effect of a borrowing; and (ii) the expressions, allottee and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016);] (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h) of this clause; Section 5(21) of IBC, 2016 Operational Debt means a claim in respect of the provision of goods or services including employment or a debt in respect of the 6[payment] of dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority; 13. If we shall read ..... X X X X Extracts X X X X X X X X Extracts X X X X
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