TMI Blog2022 (7) TMI 1072X X X X Extracts X X X X X X X X Extracts X X X X ..... ebtor a demand notice in Form III or a copy of the invoice attached with notice in Form IV. The demand notice, referred to Section 8(2) of the Code has to be delivered to the corporate debtor at the registered office by hand, registered post or speed post with acknowledgement due or by electronic email service to the Whole Time Director or designated partner or key managerial personnel, if any, of the corporate debtor. The legislature has used the word or in Rule 5(2)(a b) which means that the demand notice could be served either at the registered office or upon the Whole Time Director. It means that service upon one of the entities is the sufficient compliance of Section 8(2) of the Code and both are not necessary. In the case of JYOTI STRIPS PRIVATE LIMITED VERSUS JSC ISPAT PRIVATE LIMITED [ 2021 (2) TMI 204 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH] , it has been held that Section 8 of the Code read with Rule 5 of the Rules provides that service of demand notice has to be served upon the corporate debtor at its registered address. But no such issue was involved in it that in case it is not served upon a Whole Time Director then it would be an insu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... karma Tool Works (Operational Creditor) has been admitted, Corporate Insolvency Resolution Process (CIRP) has been initiated and Insolvency Resolution Professional (IRP) has been appointed followed by moratorium as envisaged under Section 14(1). 2. In brief, the operational creditor filed an application under Section 9 of the Code to initiate CIRP against the corporate debtor for non-payment of the outstanding dues of Rs.3031780/- arising out of sale of the pet moulds, injection moulds and various other plant and machinery of various description to the corporate debtor. 3. According to the operational creditor, the corporate debtor had been accepting the delivery of the products without any protest or demur as the goods were sent only after approval of sample but from the last one and half year it deliberately avoided the payment of the dues, concocting story of goods being of defective nature. The operational creditor had raised invoices dated 5th April 2016, 25th April 2016, 28th March 2016, 26th August 2016 and 22nd November 2016 of an amount of Rs.1108740/-, 395760/-, 244800/-, 2473449/- and 359040/- respectively. 4. The operational creditor has alleged that before fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Pvt. Ltd., Company Appeal (AT) (Insolvency) No.143 of 2019 in order to show that if notice under Section 8 is not served at the registered office of the corporate debtor then the whole proceedings are vitiated. Learned counsel for the appellant has drawn our attention to Company master data (Annexure A/11) wherein the registered address has been shown as 332-A, Sant Nagar, East of Kailash, New Delhi and contended that the notice has otherwise been sent at the registered address i.e. Plot No.388/389, Biscuit Factory Road, Nasir Ganj Diga, Danapur, Patna. In this regard he has relied upon the decisions of this Tribunal rendered in the case of Jyoti Strips Pvt. Ltd. Vs. J.S.C. Ispat Pvt. Ltd. Company Appeal (AT) (Insolvency) No.775 of 2020 and Mr. Shalender Sharma, Director of R M International Pvt. Ltd. Vs. Ercon Composites Company Appeal (AT) (Ins.) 159 of 2020. 7. On the other hand, counsel appearing on behalf of the Respondent has submitted that the debt is acknowledged in the books of accounts of the Corporate Debtor and has referred to the decisions of the Hon'ble Supreme Court in the case of Mahabir Cold Storage Vs. CIT 1991 Supp.(1) SCC 402, A.V. Murthy Vs. B.S. Naga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount from the bank account of corporate debtor, by sending an attested copy of record that operational creditor has encashed the cheque issued by the corporate debtor and after the expiry of period of 10 days from the date of delivery of the notice or invoice demanding payment under Section 8(1), if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under 8(2), the operational creditor may file an application under Section 9 to the Adjudicating Authority for initiating Insolvency Resolution Process. 11. From the perusal of the aforesaid provisions i.e. Section 8 and 9 of the Code, it is apparent that a notice of the unpaid amount to the corporate debtor is a sine qua non. The form and manner of the demand notice is provided in Rule 5 of the Rules of 2016 which says that an operational creditor has to deliver to the corporate debtor a demand notice in Form III or a copy of the invoice attached with notice in Form IV. The demand notice, referred to Section 8(2) of the Code has to be delivered to the corporate debtor at the registered office by hand, registered post or speed post with acknowledgement due or by electronic email ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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