9911796707
TMI Blog2017 (8) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Corporate office of the Corporate Debtor. 2. The Petitioner further avers that the relationship between the parties are governed in terms of the Agreement entered into between the parties on 25.8.2014. He further submitted that under the Agreement, Invoices raised were required to be paid within a period of 30 days from the date of such invoice being raised as was the case between July, 2014 to April, 2015 though there had been some delay on several occasions in relation to payments. However, in relation to May, 2015, Invoice in a sum of Rs. 26,38,811 dated 08.6.2015 was raised which was required to be paid in full. However, only a part payment has been made and a sum of Rs. 8,28,394/- is due and payable on the part of the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties which are required to be complied with by the Operational Creditor in order to maintain a Petition. Under Section 8 of IBC,2016 it is mandatory for the Operational Creditor to issue a notice of default in relation to the unpaid debt on the Corporate Debtor. The manner and the form in which the said notice of dispute is required to be issued is specified in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for brevity hereinafter called as 'AAA' Rules. Rule 5(2) of the above noted 'AAA' Rules,2016 specifies the manner of service of demand notice and the same is reproduced herein below: "5 (1) xxxx..... (2) The demand notice or the copy of the invoice demanding payment referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an unpaid operational debt by the corporate debtor; and (d) such other information as may be specified. 9. Again going back to the 'AAA' Rules, it is seen that the Operational Creditor being the applicant is required to dispatch forthwith a copy of the application filed with the Adjudicating Authority by registered post or speed post to the registered office of the Corporate Debtor. Upon an intense perusal of the provisions as extracted above, it is seen that the onus has been placed on the Operational Creditor to issue notice twice :- (i) once in relation to the notice of demand of the unpaid amount and (ii) in relation to the notice of application filed before this Tribunal in case of non-payment of the amount claimed as unpai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is well the above statutory minimum of Rs. 100,000 fixed by IBC, 2016 for maintaining a petition, the Operational Creditor does not seem to have complied with the mandatory requirement of serving notice of default as well as notice of application on the Corporate Debtor at its registered office nor complied with the provisions of Sub-Section (3) of Section (9) in relation to documents to be annexed along with the application, in the sense that a copy of certificate from the financial institution maintaining the accounts of the Operational Creditor confirming that there is no payment of unpaid operational debt by the Corporate Debtor which has not been furnished before this Tribunal. While the dispatch of notice of demand seems to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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