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TMI Blog2024 (9) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent - Corporate Debtor. Pursuant to the above Agreement, the Appellant provided services of boarding & lodging, conducting social events and F&B services to the Respondent on OYO Platform. The Appellant raised various invoices in references to services provided to the Respondent. On 29.03.2023, a Demand Notice was sent by the Operational Creditor to the Corporate Debtor in Form-3, claiming total amount of Rs.1,98,09,748/-, which included principal amount of Rs.1,12,23,598/- and interest of Rs.85,86,150/- till 31.03.2023. The Demand Notice was replied by the Corporate Debtor by letter dated 13.04.2023 denying the claim. The Appellant filed Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the "IBC") on 10.12.2023, on which IB- 310/AHM/2023 was registered. On 02.01.2024, which was the first date of hearing of the Application under Section 9, the Adjudicating Authority dismissed the Application as defective. Aggrieved by which order, this Appeal has been filed. 3. We have issued notice in the appeal and on advance copy of this Appeal being served on the Respondent, the Respondent has appeared when the Appeal was taken for consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. It is further submitted that the Appellant's case also fall within the ambit of Section 9 (5) (ii) (d), since the Appellant has received a notice of dispute from the Respondent and there being pre-existing dispute, the Application deserves to be rejected. The Appellant has failed to establish the debt, hence, there was no question of issuing any notice by the Adjudicating Authority. The learned Counsel for the Respondent has relied on the judgment of this Tribunal in Ramco Systems Ltd. vs. Spicejet Ltd - (2019) SCC OnLine NCLAT 354, which judgment has also been affirmed by the Hon'ble Supreme Court vide its order dated 26.09.2023 Civil Appeal No.7217 of 2019. 7. We have considered the submissions of learned Counsel for the parties and have perused the records. 8. The impugned order under challenge was passed by the Adjudicating Authority on the first date of hearing, without issuing any notice to the Corporate Debtor, which is as follows: "Heard the counsel for applicant. There was no proper explanation given on the date of invoice, default and limitation period to ascertain the due date. It was also observed that the invoices were raised on two different entities and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an opportunity to Applicant to rectify the defect. In the present case, although the Adjudicating Authority made observations as noted above and ultimately dismissed the Application as defective. The rejection of the Application, thus is clearly referrable to Section 9, sub-section (5) (ii) (a). The rejection of the Application under Section 9, sub-section (5) (ii) can be on five grounds as noted above. The order of the rejection is not applicable to sub-Clause (ii), (b), (c), (d) and (e). Shri Amit Sibal, learned Counsel for the Respondent has strenuously contended that the notice of dispute having already been given to Operational Creditor by Corporate Debtor dated 13.04.2023, after receipt of the Demand Notice dated 29.03.2023 and hence there is pre-existing dispute and the Application is liable to be rejected under Section 9(5)(ii)(d). As noted above, the Adjudicating Authority has not dismissed the Application on the ground of dispute which has been raised by the Operational Creditor. The Adjudicating Authority has not even entered into the issue of pre-existing dispute between the parties. Hence, the above issue need not be gone into the present Appeal. The Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Section 9(3)(c) by the 'Operational Creditor', in the absence of a certificate from the financial institution maintaining accounts of the 'Operational Creditor'. The Adjudicating Authority further observed that the 'Corporate Debtor' on the other hand shown that certain payment has been made." 14. The Appeal filed by the Operational Creditor was dismissed. This Tribunal in paragraph 8 to 11 made the reasons for dismissal of the Appeal. From paragraph 10 of the judgment, it is clear that this Tribunal has dismissed the Appeal while observing "... but in absence of specific evidence relating to invoices actually forwarded by the Appellant and there being a doubt, we hold that the Adjudicating Authority has rightly refused to entertain application under Section 9 which requires strict proof of debt and default". This Tribunal dismissed the Appeal on the above ground. The judgment of this Tribunal in Ramco Systems Ltd., does not help the Respondent in the present case, since the Application has been rejected by the Adjudicating Authority without returning any finding on the merits of the Application. 15. The learned Counsel for the Respondent has also relied on the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Supreme Court related to stringent requirements as to registration of such utility the moment information of default is received. The observation above has no application in the facts of the present case, where Adjudicating Authority has not even adverted to the information utility certificate. 19. We are of the view that various issues raised by the learned Senior Counsel for the Respondent Shri Amit Sibal need not be gone into at this stage, when the Adjudicating Authority has not adverted to any of the above issues and has rejected the Application as defective. When the Adjudicating Authority has proceeded to dismiss the Application as defective, it was obligatory as per Proviso to Section 9, sub-section (ii) to give a notice to the Applicant to rectify the defect in the Application within seven days from the date of receipt of such notice. The Adjudicating Authority having not issued a notice under Proviso, the order impugned is unsustainable on this ground alone. 20. The judgment of this Tribunal relied by the learned Counsel for the Appellant in Tek Travels Private Ltd. vs. Altius Travels Pvt. Ltd. (supra) fully support the submissions of learned Counsel for the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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