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TMI Blog2024 (11) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... fore filing the petition, the Appellant served a demand notice under Section 8 of the Code in form- 3 addressed to Mr. Sameer Singh, Director, Bibhuti Bhushan Rath, Chief Financial Officer and Mr. S. Subudhi, Manager Commercial of the Corporate Debtor. 4. The said notice was addressed to all the three Key Managerial Personnel (KMP) of the Corporate Debtor at their official address, namely, Mesco Kalinga Steel Limited, 3915, Lewis Road, Mesco Tower, Kedar Gouri Squre, Bhubaneshwar - 751002. 5. The notice was sent allegedly through courier which was received by all the three aforesaid persons. Thereafter, the application under Section 9 was filed. Although, it was not the defence taken by the Respondent/CD that the notice issued under Section 8 was not issued to the CD yet during the course of hearing before the Tribunal, the same issue was raised and the Tribunal took cognizance of the said objection and framed the following question:- "Whether statutory demand notice has been served upon the CD?" 6. This issue was decided by the Tribunal by recording the following observations:- "Point No. 2 9. On the respondent/corporate debtor side raised another plea that no demand not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliver a demand notice of unpaid operational debt or copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. Demand notice by operational creditor. - (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely. - (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a wholetime director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any. 16. On the petitioner side submitted that the delivery to the corporate debtor is sufficient if notice served by registered post on the director or key managerial personnel of the corporate debtor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules) in which Rule 5 deals with the Demand notice by operational creditor. It is submitted that the demand notice can be delivered by two modes i.e. at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. It is submitted that in the present case delivery of the demand notice has been by courier, therefore, notices were properly delivered/ served and the application in this regard should not have been dismissed or the Appellant should not have been non-suited on this ground only. In support of his submissions, he has relied upon a decision of this court rendered in the case of Niraj Kumar Singh Vs. Mr. Faihzan Khan, CA (AT) (Ins) No. 566 of 2022. 8. On the other hand, Counsel for the Respondent has submitted that the notice under Section 8 of the Code is a sine qua non for invoking Section 9 of the Code by the operational creditor. It is further submitted that Section 8 categorically provides that notice has to be given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 thefinancial 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 insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) admit the application and communicate such decision to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor- (a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred." 13. The aforesaid Section clearly provides that an operational creditor after the occurrence of a defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with the promotion, formation or management of any company, or that he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief; (d) the address for correspondence till its registered office is established; (e) the particulars of name, including surname or family name, residential address, nationality and such other particulars of every subscriber to the memorandum along with proof of identity, as may be prescribed, and in the case of a subscriber being a body corporate, such particulars as may be prescribed; (f) the particulars of the persons mentioned in the articles as the first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed; and (g) the particulars of the interests of the persons mentioned in the articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or (b) direct that liability of the members shall be unlimited; or (c) direct removal of the name of the company from the register of companies; or (d) pass an order for the winding up of the company; or (e) pass such other orders as it may deem fit: Provided that before making any order under this sub-section,- (i) the company shall be given a reasonable opportunity of being heard in the matter; and (ii) the Tribunal shall take into consideration the transactions entered into by the company, including the obligations, if any, contracted or payment of any liability." 15. Section 7(2) of the Act clearly provides that the Registrar, on the basis of documents and information filed under sub-section (1), shall register all the documents and information referred to in that subsection in the register and issue a certificate of incorporation in the prescribed form to the effect that the proposed company is incorporated under the Act. The meaning of the aforesaid is that the company which is incorporated by way of procedure provided in Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in Form-3 and therefore, a printed proforma has been provided otherwise there is no need for a printed perform notice as it could have been served by the OC to any person of the Company but notice has to be addressed to the company which is a juristic person having a separate entity. 18. In so far as the decision in the case of Niraj Kumar (Supra) is concerned, it is submitted that the said decision is altogether on different facts, therefore, it is not applicable to the present case. 19. We have heard Counsel for the parties and perused the record. 20. Undisputedly, the issue of notice under Section 8 that too on a printed proforma (Form 3) is a sine qua non for the purpose of invoking Section 9 of the Code for filing an application under Section 9 of the Code by the OC. In case, the notice is not issued then the cause of action is not complete and application under section 9 cannot be maintained. In the present case, though the notice has been issued on 31.03.2021 and it is also on Form 3 but the same has been addressed to Mr. Sameer Singh, Director, Bibhuti Bhushan Rath, Chief Financial Officer and Mr. S. Subudhi, Manager Commercial of the Corporate Debtor in their capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd". The two being different entities and the Demand Notice having been addressed to "Lex Innova Digital Payments Pvt. Ltd.", the notice was therefore defective. The rival contention of the Operational Creditor is that the acronym "LI" stands for Lex Innova and the Corporate Debtor have themselves used the word Lex Innova in the letter-head of the Appointment Company Appeal (AT) (Ins.) No. 566 of 2022 Letter dated 02.08.2018 issued by them to the Operational Creditor. Thus, the Corporate Debtor is also clearly associated with the name "LexInnova". 12. We also note that this issue of nomenclature has been deliberated at length by the Adjudicating Authority in the Impugned Order after having examined various material on record including the Appointment letter, Demand notice and Company Master data as reproduced below: "23. That from perusal of the aforesaid document, we observe that although the Demand Notice is addressed to Lex Innova Digital Payments Pvt. Ltd., however, in the main body of the Demand Notice, the Corporate Debtor has also been addressed as "LI Digital Payments Pvt. Ltd bearing CIN No. U74999DL2018PTC330177", which matches with the CIN of the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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