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TMI Blog2019 (9) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout instructions . According to learned counsel for Appellant, particulars of Respondent were in accordance with the Registered Office Address as per record of Registrar of Companies. Mode of substituted service was resorted to and the notice was published in English newspaper - Indian Express and Kannada Newspaper Vijayavani (Bengaluru Edition) issues dated 16th April, 2019 and 12th May, 2019, respectively. However, none appeared on behalf of the Respondent and the appeal was heard in ex-parte. 3. The case setup by the Appellant is that the Appellant is a Private Limited Company engaged inter-alia in the business of providing facility management, security, portfolio management and aviation services. The Respondent - Corporate Debtor dealing in transport, storage and communications business, being in continuous requirement of manpower for its works contacted the Appellant for supply of manpower culminating in a letter of intent dated 24th August, 2012 for supply of manpower styled as facility services which, according to Appellant, constituted a contract between the parties. According to Appellant, the Appellant supplied manpower on regular basis to Respondent Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 8(1) of I B Code has been served upon the Respondent Corporate Debtor. In this regard it would be apposite to reproduce Para 9 of the impugned order, which reads as under:- 9. There are two problems basically involved in the petition one so far the Petitioner has not been in a position to serve the Statutory Notice even under the old act i.e., Companies Act 1956 nor they have been able to serve the Demand Notice under Insolvency and Bankruptcy Code to the Respondent. They are unable even to locate the address and serve it to the Directors. Even if we assume while CIRP process initiated, Interim professional will not in position to find the location where the company is situated and where is the office of the firm. Hence no purpose will be served. No proof has been submitted that the manpower has been supplied to the Respondent Company and to what extent they have accepted their supply of manpower. All these suggest that the case is not right to initiate Corporate Insolvency Resolution Process. Hence we are of the view that the contract was not based on any Joint agreement between the parties nor through purchase order or through supply manpower contract, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Innovations (P) Ltd. v. Kirusa Software (P) Ltd. , (2018) 1 SCC 353, Para 33 , which reads as under:- 33 . The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. on non-payment of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute [Section 8(2)(a)]. What is important is that the existence of the dispute and/or the suit or arbitration proceeding must be pre-existing i.e. it must exist before the receipt of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no notice of dispute has been received by the operational creditor from the corporate debtor or that there is no record of such dispute in the information utility [Section 9(5)(i)(d)], or that there is no disciplinary proceeding pending against any resolution professional proposed by the operational creditor [Section 9(5)(i)(e)], it shall admit the application within 14 days of the receipt of the application, after which the corporate insolvency resolution process gets triggered. On the other hand, the adjudicating authority shall, within 14 days of the receipt of an application by the operational creditor, reject such application if the application is incomplete and has not been completed within the period of 7 days granted by the proviso [Section 9(5)(ii)(a)]. It may also reject the application where there has been repayment of the operational debt [Section 9(5)(ii)(b)], or the creditor has not delivered the invoice or notice for payment to the corporate debtor [Section 9(5)(ii)(c)] . It may also reject the application if the notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility [Section 9(5)(ii)(d)]. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence 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. 7. In view of the foregoing discussion, 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 under Section 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 Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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