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TMI Blog2017 (9) TMI 856X X X X Extracts X X X X X X X X Extracts X X X X ..... Shakti Smelters Pvt. Ltd. 2. The brief facts of the case, as given in Part IV in Form 5, are that a sum of Rs. 57,00,000/- along with interest @ 18% calculated from 1/1/2015 till filing of the application comes to Rs. 20,00,000/- and, as such Rs. 77,00,000/- is the amount due for which the operational creditor has filed this application. 3. The petitioner has stated in the petition that as per purchase order the debtor company was to dispatch the ordered goods within 70 days of payment of 80% of the total value towards advance (Rs.27,00,000/- on 31/7/2014, Rs. 10,00,000/- on 16/10/2014 and Rs. 20,00,000/- on 16/10/000/) which was duly credited by the operational creditor on 16/10/2014. But, the corporate debtor defaulted in supply the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Authority Rules and in absence of any notice, the application filed under Rule 6 is not maintainable. 6. The corporate debtor has further stated that no action under Sec.9 of the I & B Code, 2016 can be instituted without strict compliance of Sec. 8 of the I & B Code, 2016 and hence, the application being CP No. 127 of 2017 is liable to be dismissed. 7. It is further stated in the reply that requirement of Sec.8 of the I & B Code, 2016 read with Rule 6 of the Adjudicating Authority Rules, 2016 have not been complied with regard to purported claim. It is also alleged that purported claim of the operational creditor is highly disputed and is based on forged and fabricated documents. No sum is due and payable by the corporate debtor to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s denied that the corporate debtor could not supply the goods as alleged or at all. 9. The corporate debtor has also denied the allegation contained in purported notice under Form 3 dated 30/3/2017. It is further alleged that the operational creditor has approached this Tribunal by gross suppression of material facts and on this ground alone the company petition is liable to be dismissed. The said application is misconceived and without any merit and is not in accordance with I & B Code, 2016 and the applicable Rules framed thereunder. 10. The operational creditor has also filed rejoinder wherein he has reiterated the contents of the application and denied all the allegations levelled by the operational creditor. 11. Heard learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed altogether on the same day i.e. 30/3/2017. Sec.8 of the I & B Code lays down the procedure to be adopted for proceeding in Sec.9 of the I & B Code. 17. Thus it is clear that initiating corporate insolvency process by an operational creditor under Sec.9 of the I & B Code demand notice as is prescribed in form 3 or 4 is to given on the corporate debtor 10 days before filing of the petition. It is also obligatory on corporate debtor within 10 days of receipt of the demand notice to bring to the notice of operational creditor regarding any fact relating to the existence of dispute or information relating to the payment of debt amount. In this case required demand notice as prescribed in Rule 8 was not sent on the corporate debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is required to be filed in such format and manner and accompanied by such fee, as may be prescribed. The Operational Creditor along with the application is required to furnish following documents as mentioned in clauses (a), (b), (c) and (d) of sub-section (3) of Section 9 of I & B Code. 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 the financial institutions maintaining accounts of the operational creditor confirmin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that there is no payment and unpaid operational debt by the corporate debtor. 20. In this case it is undisputed, that before filing an application in Form 5 under the I & B Code operational creditor has not issued demand notice prescribed in form and operational creditor has also not annexed affidavit relating to the fact that there is no notice given by the corporate debtor relating to the dispute of unpaid operational debt. Certificate from financial institution has not been annexed to show that no payment of unpaid operational debt has been made by the corporate debtor. This requirement of complying with the statutory requirements of sub-clause (3) of Sec.9 of the I & B Code is mandatory for initiating corporate insolvency process a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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