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TMI Blog2019 (12) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... are stated as under :- I. The Applicant/Operational Creditor is in the business of moulding various plastic components such as supplying injection of moulded parts for various models of Air-conditioners to the respondent/corporate debtor company since 2008 on the basis of purchase orders placed by the respondent company time to time. II. The Respondent/Corporate Debtor company is having an Authorized Capital of Rs. 70,00,00,000/- and Paid Up Capital of Rs. 40,33,22,600/-. A copy of the Master data of the Corporate Debtor company uploaded from the portal of Ministry of Corporate Affairs (MCA) is annexed with the petition as ANNEXURE-"3". III. The Corporate Debtor have placed several Purchase Orders with the Operational Creditor for supply of the goods and made payment to Operational Creditor, as particularly described at their Plant/Office, which is as under :- (1) Pant Nagar, Plot No.24, Sector-2, IIE Pant Nagar, U.S. Nagar, Pin: 263153, Uttarakhand, India. (2) Kala Amb Unit No.1, Plot Nos.16-17, Industrial Area, Trilokpur Road, Neham-Sirmur, Himachal Pradesh, Pin: 173030. (3) Kala Amb Unit No.3, Plot No. 15, Industrial Area, Trilokpur Road, Neham-Sirmur, Himachal Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .82 from Corporate Debtor by initiating appropriate proceedings. XI. The Corporate Debtor has issued 5 credit notes amounting to Rs. 4,27,763.26/- (Rupees Four Lakhs Twenty Seven Thousand Seven Hundred Sixty Three and Twenty Six paise only). XII. Thereafter, Applicant/Operational Creditor stated that they have issued the said Demand Notice twice dated 29.06.2019 and 19.07.2019 under Section 8 of the Insolvency and Bankruptcy Code, 2016 to the Corporate Debtor and both notices were returned back with endorsement "Office Closed" and "Not Known" respectively. XIII. Further, it is stated that, till date Corporate Debtor have not paid the total outstanding amount of Rs. 9,14,44,593,26/- (Rupees Nine Crores Fourteen Lakhs Forty Four Thousand Five Hundred Ninety Three and Twenty Six Paise Only), which is due from 08.04.2018 till 01-08-2019 together with further interest @ 24% p.a. 3. I have heard the learned counsel appearing for Applicant/Operational Creditor. 4. The present case has been filed on behalf of Operational Creditor against the Corporate Debtor U/s 9 of the I & B Code and before filing the present petition, the Operational Creditor had sent the demand notice as requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any. 11. It is a settled principle of law that there is a difference between the procedure for initiation of CIRP by the Financial Creditors U/s 7 of the IBC and the Operational Creditors U/s 9 of the IBC. So far as the Financial Creditor is concerned, as per Section 7 of the IBC, there is no need to deliver the notice before the initiation of CIRP and that has been decided by the Hon'ble Apex Court in Innoventive Industries Ltd. v. ICICI Bank [2017] 143 SCL 625 : "The scheme of Sec 7 stands in contrast with the scheme under Sec 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 8 of IBC, the word, 'deliver the notice upon unpaid operational creditor' is mentioned. There is a difference between these two Sections, Section 8 of TBC and Section 138(b) of the N.I. Act regarding the service of notice upon the person concern. 14. As I have already stated in the aforementioned para that the purpose to deliver the notice is to give an opportunity to the Corporate Debtor to raise a dispute or negotiate with the operational creditor and that was the intention of the legislatures, that is the reason the word 'delivery' has been given in place of 'sending or giving the notice upon the person concern'. 15. Therefore, in my opinion under the facts and circumstances of the case, the decision upon which the applicant has placed reliance is not applicable. Similarly, the facts of other decisions of the Hon'ble Supreme Court is also different from the facts of the case in hand, therefore, that would also not support the contention of the learned counsel appearing for the applicant. 16. Now, I shall consider the decision passed by the Hon'ble NCLAT in Company Appeal (AT) (Insolvency) No. 684 of 2018 in the matter of Alloysmin Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udicating Authority who will consider the same in accordance with law uninfluenced by impugned order dated 19th July, 2018." 19. In the light of that decision, when I shall consider the case of the applicant, then this Tribunal is of the considered view that under Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, there are two modes for sending demand notice, one is, either at the registered office by hand, registered post or speed post with acknowledgement due, or second one, by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor, and on the basis of the facts stated in the application, I find, the applicant had sent the demand notice only through the registered post, which was returned unserved and he has neither delivered it personally nor send the demand notice through electronic mail service to a whole time director or designated partner or key managerial personnel of the corporate debtor. 20. So, under such circumstances, in my opinion, the applicant has not complied the provision contained under Rule 5 of the Insolvency & Bankruptcy (Application to Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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