2021 (3) TMI 63 - Tri - Insolvency and Bankruptcy

Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - service of demand notice in proper form and manner - section 8 of IBC code - HELD THAT - The notice issued by the petitioner on September 25, 2016 is a statutory notice under the Companies Act, 2013. An ordinary scanning of the demand notice reveals that the petitioner has demanded sum of ₹ 2,12,704 as due from the corporate debtor. It is to be noted that the notice is a notice under the Companies Act, 2013 and nowhere in the notice it is mentioned that this notice is issued under section 8 of the IBC, 2016 - This Bench is of the view that for initiating CIRP against the corporate debtor, section 8 of the Code mandates that the demand notice has to be issued in such a form and manner as may be prescribed. The demand notice issued by the petitioner is not in the form as mandated in the rule and hence this notice is a defective notice - Petition dismissed.

Summary

Issues:
1. Initiation of corporate insolvency resolution process under section 9 of the Insolvency and Bankruptcy Code, 2016 based on default in payment.
2. Validity of the demand notice issued by the operational creditor under section 8 of the Code.

Issue 1: Initiation of Corporate Insolvency Resolution Process:
The petitioner, an operational creditor, filed a petition under section 9 of the Insolvency and Bankruptcy Code, 2016, seeking to initiate the corporate insolvency resolution process against the corporate debtor for defaulting on a payment of ?2,12,704 with interest. The petitioner claimed that despite supplying goods and raising invoices, the corporate debtor failed to make the complete payment, resulting in the outstanding amount. The petitioner argued that the petition was filed within the limitation period, and no representation was made by the corporate debtor despite notice.

Issue 2: Validity of Demand Notice:
The notice issued by the petitioner to the corporate debtor was examined by the Tribunal. The notice, dated September 25, 2016, was found to be a statutory notice under the Companies Act, 2013, rather than a notice under section 8 of the Insolvency and Bankruptcy Code, 2016. The notice demanded payment of ?2,12,704 and highlighted the outstanding amount, interest, and consequences of non-payment. However, the notice did not conform to the requirements of section 8 of the Code, which specifies the form and manner of a demand notice to be issued by an operational creditor.

The Tribunal noted that the demand notice was crucial for initiating the corporate insolvency resolution process under the Code and should adhere to the prescribed format. As per the provisions of rule 6, the application by an operational creditor for initiating CIRP must be in the specified form and accompanied by the necessary documents. Since the demand notice in this case did not meet the prescribed standards, the Tribunal deemed it defective. Consequently, the petition for initiating the corporate insolvency resolution process was dismissed based on the inadequacy of the notice issued by the petitioner.

This judgment underscores the importance of strict adherence to the procedural requirements outlined in the Insolvency and Bankruptcy Code, particularly concerning the issuance of demand notices by operational creditors. Failure to comply with the prescribed format and content of such notices can lead to the dismissal of petitions seeking to initiate the corporate insolvency resolution process.