2019 (9) TMI 417 - AT - Insolvency and Bankruptcy

Initiation of Corporate Insolvency Resolution Process - non-delivery of notice of demand upon the Corporate Debtor - HELD THAT - Application of Appellant was required to be rejected merely on the ground of non-delivery of notice of demand upon the Corporate Debtor and the Adjudicating Authority had no jurisdiction to record finding with regard to merits of the claim. Period of limitation - Application filed in Form 5 in compliance to the order of Adjudicating Authority seeking initiation of Corporate Insolvency Resolution Process under Section 9 of I B Code was not hit by limitation but the application was premature as the demand notice stated to have been sent on 11.10.2017 could not be served upon the Respondent and was received back with endorsement Addressee Left . Even the notice sent on alternate address was returned with endorsement No Such Firm . In absence of service of demand notice upon the Respondent - Corporate Debtor whose existence at the given address itself was doubtful, the Appellant - Operational Creditor was not entitled to seek triggering of Corporate Insolvency Resolution Process. Once application in prescribed form was filed by the Appellant, the Adjudicating Authority was empowered to reject the same for failure on the part of Operational Creditor to deliver demand notice to the Corporate Debtor. We find ourselves left with no course but to dismiss the appeal though only for reasons of non-compliance with the procedural requirements as laid down u/s 8(1) r/w Section 9(5)(ii)(c) of I B Code. The impugned order as regards findings on admissibility, sustainability and proof of claim besides observations as regards limitation cannot be supported and is set aside. The Appellant shall be at liberty to seek triggering of Corporate Insolvency Resolution Process under Section 9 of I B Code afresh after complying with the mandatory requirement of Section 8(1) of I B Code within thirty days from the date certified copy of this judgment is provided to it. The period for which the Appellant has been prosecuting his claim before the Adjudicating Authority and before this Appellate Tribunal shall be excluded from computation of limitation.

Summary

Issues Involved:
1. Whether the operational debt was time-barred.
2. Whether there was proof of a purchase order/contract between the parties to substantiate the services provided.
3. Whether the service of notice to the Respondent was effected through substituted service as directed by the Adjudicating Authority.

Issue-wise Detailed Analysis:

1. Whether the operational debt was time-barred:
The Adjudicating Authority rejected the application on the ground that the operational debt was prima facie barred by limitation. The Tribunal noted that the supply of manpower was made long back in the year 2013. However, the Tribunal clarified that the limitation for triggering the Corporate Insolvency Resolution Process (CIRP) would not be identical with the limitation for purposes of claim. Since Sections 8 and 9 of the Insolvency and Bankruptcy Code (I&B Code) came into force on 1st December 2016, the remedy provided to an Operational Creditor was not available before this date. Therefore, the application for triggering CIRP under Section 9 of the I&B Code could not be held to be hit by the law of limitation. The Tribunal concluded that the application was not time-barred but was premature due to non-service of the demand notice.

2. Whether there was proof of a purchase order/contract between the parties to substantiate the services provided:
The Adjudicating Authority found that there was no proof of a purchase order or contract between the parties to substantiate the services provided. The Appellant claimed that the Respondent had acknowledged the debt and had failed to repay even after the issuance of a demand notice. However, the Tribunal observed that the Appellant failed to substantiate the claim with proper evidence. The Tribunal noted that the contract was based on some form of understanding rather than a joint agreement or purchase order, which led to the rejection of the application.

3. Whether the service of notice to the Respondent was effected through substituted service as directed by the Adjudicating Authority:
The Adjudicating Authority noted that the Appellant failed to serve the statutory notice under the Companies Act, 1956, and the demand notice under Section 8(1) of the I&B Code upon the Respondent. The notice sent through the registered address of the Respondent was returned with the endorsement “Left,” and the substituted service through publication in newspapers was not carried out. The Tribunal emphasized that the initiation of CIRP was declined due to the failure of the Appellant to serve the demand notice and substantiate the claim. The Tribunal referred to the authoritative pronouncement in "Mobilox Innovations (P) Ltd. v. Kirusa Software (P) Ltd." to highlight that the application was required to be rejected merely on the ground of non-delivery of the notice of demand upon the Corporate Debtor.

Conclusion:
The appeal was dismissed due to non-compliance with the procedural requirements under Section 8(1) read with Section 9(5)(ii)(c) of the I&B Code. The Tribunal set aside the findings on admissibility, sustainability, and proof of claim, as well as the observations regarding limitation. The Appellant was granted liberty to seek triggering of CIRP afresh after complying with the mandatory requirements of Section 8(1) of the I&B Code. The period for which the Appellant had been prosecuting the claim before the Adjudicating Authority and the Appellate Tribunal was to be excluded from the computation of limitation.