2019 (8) TMI 1470 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT - It is observed that service/delivery of notice of demand on the Corporate Debtor by the Operational Creditor is not established. We also do not agree with the contention of the Operational Creditor that notice of demand sent to the Director of the Company at his residence has not been returned, hence, it should be deemed to have been served/delivered in view of the General Clauses Act, 1897 and Section 114 of Indian Evidence Act, 1872. As it is an established position that I B Code, 2016 is complete Code in itself and provisions of Indian Evidence Act, 1872 and General clause Act, 1897 are not applicable unless specifically covered in IBC, 2016. For this reason only, the Petition is filed by the Operational Creditor is liable to be dismissed. Petition dismissed.

Summary

Issues:
Application for initiating Corporate Insolvency Resolution Process under section 9 of Insolvency and Bankruptcy Code, 2016 based on default in payment by the Corporate Debtor.

Analysis:
The Operational Creditor filed an application under section 9 of the Insolvency and Bankruptcy Code, 2016 against the Corporate Debtor for defaulting on a payment of a specified amount along with interest. The Operational Creditor alleged that despite regular supply of chemicals and payments made by the Corporate Debtor, the impugned amount remained outstanding. The Operational Creditor provided details of the supply modalities and payments received. The application was supported by documents showing the due amount and attempts made to serve notice under section 8 of the Code.

The Corporate Debtor contested the application, arguing that the notice of demand under section 8(2) of the Code was not served as required by law. The Corporate Debtor claimed that there was a dispute regarding the quality of materials supplied and the agreement to waive off the impugned sum, which was not fulfilled by the Operational Creditor. The Corporate Debtor relied on a previous decision to support its argument that the notice of demand should have been acknowledged by them for the petition to be valid.

Upon hearing both parties and examining the evidence, the Tribunal found that the service/delivery of the notice of demand was not established by the Operational Creditor. The Tribunal emphasized that the Code is a complete legal framework on its own, and the provisions of other Acts like the Indian Evidence Act, 1872, and General Clauses Act, 1897 are not automatically applicable unless covered in the Code. Citing a previous order, the Tribunal highlighted the importance of strict compliance with the notice requirements under sections 8 and 9 of the Code to prevent misuse of the insolvency mechanism for recovery purposes. Therefore, the Tribunal dismissed the petition by the Operational Creditor due to the lack of proper service of notice, without delving into the merits of the case.

In conclusion, the Tribunal's decision was based on the procedural failure to serve the notice of demand in accordance with the requirements of the Insolvency and Bankruptcy Code, 2016. The dismissal of the petition highlights the significance of strict adherence to the statutory provisions for initiating insolvency proceedings, emphasizing the need for clear communication and compliance with legal procedures in such matters.