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TMI BlogProcess for initiation of corporate insolvency resolution process by operational creditor [ section 9 ]X X X X Extracts X X X X X X X X Extracts X X X X ..... il service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. A copy of demand notice or invoice demanding payment served by an operational creditor shall also be filed with information utility, if any. Demand notice means a notice served by an operational creditor to the corporate debtor demanding payment of the operational debt in respect of which the default has occurred. The corporate debtor shall within a period of ten days of receipt of demand notice notify the operational creditor about the existence of a dispute, if any, or roof pendency of any suit or arbitration proceedings filed before receipt of such notice or invoice in relation to such dispute. Corporate Debtor shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, by registered post or speed post or by hand or by electronic means, before filing with the Adjudicating Authority. Documents to be attached with the application [ Section 9(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, if available; * ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application made under section 9(2) is incomplete; * (b) there has been payment of the unpaid operational debt; * (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; * (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or * (e) any disciplinary proceeding is pending against any proposed resolution professional: * Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority. Time to rectify the defect in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors Ltd. Vs. Benteler Trading International GMBH and Anr. NCLAT, dated 21.08.2019 ]. * Once an application under sections 7 or 9 is filed, it is not necessary for the AA to await hearing of the parties for passing order of moratorium under section 14 of the Code. To ensure that one or other party may not abuse the process or for meeting the ends of justice, it is always open to the AA to pass appropriate interim order. [ NUI Pulp and Paper Industries Pvt. Ltd. Vs. Roxcel Trading GMBH, NCLAT, dated 17.07.2019 ]. * The applicability of Form 3 or Form 4 under of the AA Rules depends on whether invoices were generated during the course of transaction or not. Further, a copy of invoice is not mandatory if the demand notice is issued in Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent fields. Accordingly, no permission of the Central Government is required for initiation of CIRP of the CD in terms of section 16G (1) of the Tea Act, 1953. [ A.J. Agrochem Vs. Duncans Industries Ltd., NCLAT, dated 20.06.2019 ] * As the amount is due from the partnership firm, application under section 9 is not maintainable against one of the members of the partnership firm. [ Gammon India Ltd. Vs. Neelkanth Mansions & Infrastructure Pvt. Ltd., NCLAT, dated 19.12.2018 ] * Since money was paid as advance for supply of goods but the goods were not supplied, the payment cannot be considered to be an 'operational debt' and hence, application under section 9 was not maintainable. [Roma Infrastructures India Pvt. Ltd. Vs. A.S. Iron & Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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