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TMI Blog2022 (8) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... [ Per : ShreeshaMerla , Member ( T ) ] This Appeal is preferred under Section 61(1) of the Insolvency and Bankruptcy Code, 2016 ('hereinafter referred to as the Code') against the impugned order dated 30.09.2019 passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata), whereby the Adjudicating Authority has rejected the Application filed under Section 9 of the Code on the following grounds:- "7 We have considered the submissions made by both the sides and have perused the materials on record. As per provision of Sec.8(1) of Insolvency and Bankruptcy Code, 2016, an operational creditor on occurrence of a default is required to deliver a demand notice to which the corporate debtor is required to respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also contended that the Application under Section 9 of the Code was also duly served on the Respondent at the very same Registered address, apart from the other letters and communications sent to this address. 4. It is also the case of the Appellant that proof for the receipt of payment in May 2016 was duly placed on record and was also reflected in the certificate of the financial institution and therefore, the Adjudicating Authority erroneously observed that the Application was not accompanied by any documentary evidence and Banker's Certificate. The entry in the statement provided by the financial institution clearly specified the receipt of Rs.50,000/- on 23.05.2016 through cheque bearing no. 238019 and therefore the Adjudicating A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appeal Paper Book reflects the Demand Notice dated 12.12.2017 which was sent by the Appellant to the Respondent seeking payment of Rs. 43,00,510/- including interest. At page 276 of the Appeal Paper Book is the Speed Post receipt and tracking consignment report evidencing that the Demand Notice was indeed duly served on the Corporate Debtor on 20.12.2017, vide consignment no. RH305164857IN. Therefore, the contention of the Learned Sr. Counsel for the Respondent /Corporate Debtor that the Section 8 notice was never delivered upon is untenable, specially keeping in view that the address written is the registered Office address, which is undisputed. We also find force in the submissions of the Learned Counsel for the Appellant that the Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Box 5.2 is significant. It reads, "therefore, the Code requires that the creditor can only trigger the IRP on clear evidence of default." Nowhere does the report state that such "clear evidence" can only be in the shape of the certificate, referred to in Section 9(3)(c), as a condition precedent to triggering the Code. In fact, in Item 2(c) in Box 5.3, the Committee, by way of drafting instructions for how the IRP can be triggered, states: "If an operational creditor has applied, the application contains: i. Record of an undisputed bill against the entity, and where applicable, information of such undisputed as filed at a registered information utility." 11. From the aforenoted ratio, it is clear that a Banker's Certificate is not manda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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