TMI Blog2017 (8) TMI 1647X X X X Extracts X X X X X X X X Extracts X X X X ..... -4 under their signatures with clear understanding and request to repay the unpaid 'Operational Debt' (in default) unconditionally, in full, within ten days from the receipt of the letter, with further intimation that on failure, the said employee(s)/ workmen shall initiate a Corporate Insolvency Process in respect of the 'Corporate Debtor'. If such notice in Form-3 or Form-4 with the aforesaid stipulation is served on the 'Corporate Debtor', the 'Corporate Debtor' will understand the serious consequences of non-payment of 'Operational Debt', otherwise like any normal pleader notice/advocate notice or like notice under Section 80 of the Code of Civil Procedure, 1908 or notice for initiation of proceeding under the Industrial Disputes Act, 1947, the 'Corporate Debtor' may not take it seriously and may decide to contest the suit/case, if filed, before the appropriate forum - where the claim is made under Section 8 of I B Code, in such case, the 'Corporate Debtor' will understand the seriousness that it cannot contest the claim, except in a case where a dispute has already been raised, prior to the issuance of notice under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claim and the Insolvency Professional has been asked to deal with the same in accordance with law by common order dated 13th June, 2017. The aforesaid common order has been passed in C.P. No. 478 of 2017 with C.P. No. 479 of 2017 and C.P. No. 480 of 2017. 5. On 7th July, 2017, when the matter was taken up, learned senior counsel for the appellant submitted that all the respective respondents/ ex-employees / 'Operational Creditors' served advocate notice on the appellant purported to have been issued under Section 8 of the I B Code. It was further submitted that no notice under Section 8 read with Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2.016 (hereinafter referred to as 'Adjudicating Authority Rules') and Form-.3/Form-4 thereof were served on the appellant. The appellant also raised other questions to suggest that the applications preferred by all the three respondents/ 'Operational Creditors' under Section 9 of the I B Code were not complete and were fit to be rejected. 6. In view of such submission notices were issued on respondents. They have appeared. We have heard learned counsel for the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , were issued by advocate /lawyer, by judgement 'order dated 17th July, 2017 observed and held as follows: 13. From the plain reading of sub-section (1) of Section 8 it is clear that on occurrence of default, the 'Operational Creditor' is required to deliver a demand notice of unpaid operational debt, copy of invoice, demanding payment of amount involved in the default to the 'Corporate Debtor' in such form and manner as prescribed. 14. Sub-Rule (1) of Rule-5 of the Adjudicating Authority Rules mandates the 'Operational Creditor' to deliver the 'Corporate Debtor' the demand notice in Form-3 or invoice attached with the notice in Form-4 as quoted below:- 5. Demand notice by operational creditor. - (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely. - (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4 (2) 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, (a) at the registered office by hand, registered post or speed post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinct from notice under Section 8 of 'I B Code'. 18. The demand notice/ invoice Demanding Payment under the I B Code required to be issued in Form-3 or Form - 4. By the said notice, the 'Corporate Debtor' is to be informed of particulars of 'Operational Debt', with a demand of payment, with clear understanding that the 'Operational Debt' (in default), as claimed, is to be paid, unconditionally within ten days from the date of receipt of letter failing which the 'Operational Creditor' will initiate a Corporate Insolvency Process in respect of 'Corporate Debtor', as apparent from last paragraph no. 6 of notice contained inform - 3, and quoted above. Only if such notice in Form -3 or Form -4 is served, the 'Corporate Debtor' will understand the serious consequences of non-payment of 'Operational Debt otherwise like any normal pleader notice/Advocate notice or like notice under Section 80 of C.P.C. or notice for initiation of proceeding under Section 433 of the Companies Act 1956, the 'Corporate Debtor' may decide to contest the suit/case iffiled, as distinct Corporate Resolution Process, where such claim oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order dated 13th June, 2017 passed by the Learned Adjudicating Authority, Chennai Bench in C.P. No. 478 of 2017, C.P. No. 479 of 2017 and C.P. No. 480 of 2017. The common order is accordingly set aside. . 15. In effect, order(s), if any, passed by the Learned Adjudicating Authority appointing any 'Interim Resolution Professional' or declaring moratorium, freezing of account and all other Order (s) passed by Adjudicating Authority pursuant to impugned order and. action, if any, taken by the 'Interim Resolution Professional', including the advertisement, if any, published in the newspaper calling, for applications all such orders and actions are declared illegal and are set aside. The applications preferred by each of the respondents under Section 9 of the I B Code are dismissed. Learned Adjudicating Authority will now close the proceedings. The appellant is released from all the rigour of law and is allowed to function independently through its Board of Directors with immediate effect. 16 Learned Adjudicating Authority will fix the fee of 'Interim Resolution Professional', if appointed and the appellant will pay the fees of the Interim Resolution Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X
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