9911796707
TMI Blog2023 (12) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... initiation of Corporate Insolvency Resolution Process ("CIRP" in short) of the Corporate Debtor. Aggrieved by the impugned order, the present appeal has been filed by erstwhile Director of the Corporate Debtor. 2. The Learned Counsel for the Appellant making his submissions stated that the Adjudicating Authority had erroneously allowed the Section 9 application filed by Operational Creditor-Haren Sanghvi & Associates/Respondent No.1 on the ground that existence of debt and default committed thereto by the Corporate Debtor stood established. The Adjudicating Authority had seriously erred in passing the impugned order without examining the fact that demand notice required to be issued by the Operational Creditor as mandated by Section 8 of the IBC had not been complied to by the Operational Creditor. It was also asserted that the requirement of serving Section 8 demand notice being a statutory pre- requisite, non-service thereof cannot be viewed as a curable defect. 3. It was further contended that the Appellant had never received any demand notice from the Operational Creditor and the latter has also failed to provide any proof of delivery of the same on the Corporate Debtor. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been done then cannot be agitated now at this belated stage before the Appellate Tribunal. 6. Advancing their arguments further it was asserted that the Section 8 demand notice dated 04.11.2019 was addressed to the Corporate Debtor with a copy of the same also endorsed to the Operational Creditor by the legal counsel of the Operational Creditor. The wrong proof of delivery submitted by the Advocate of the Operational Creditor was on account of clerical error. Moreover, since the office premises of the Advocate of the Operational Creditor had to be shifted due to Covid pandemic and there has been a lapse of more than three and a half years since then, the proof of service of the demand notice could not be traced as the proof seems to have been misplaced. As regards the contention of the Corporate Debtor that the demand notice had been wrongly served upon the Corporate Office and not the registered office, it was pointed out that there have been numerous communications exchanged between the corporate office of the Corporate Debtor and the Operational Creditor. Moreover, even if the Section 8 demand notice was served at the corporate office, the same cannot be held against the Operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of ten days from the date of delivery of the notice or invoice demanding payment under subsection (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (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; and (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a corresponding delivery of demand notice of the said unpaid and undisputed debt and further that there has been no payment of the unpaid and undisputed debt within the period of 10 days of receipt of demand notice and that no real pre-existing dispute is discernible. 11. The Learned Counsel for the Appellant/Corporate Debtor has contended that the Adjudicating Authority in this case has erroneously commenced the insolvency process under Section 9 of IBC though the Appellant/Corporate Debtor was not served any notice upon them under Section 8 of IBC. It has also been asserted that the Operational Creditor has failed to adduce valid proof of delivery of demand notice. There appears to be force in the contention of the Appellant since material placed on record at page 163 of the Appeal Paper Book to substantiate that demand notice had been served clearly shows that the demand notice had been served by the Advocate of the Operational Creditor on the Operational Creditor and not on the Corporate Debtor. The explanation offered by the Operational Creditor is that Section 8 demand notice dated 04.11.2019 was addressed to the Corporate Debtor but on account of clerical error the proo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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