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TMI Blog2020 (1) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to claim dues, relating to the invoices issued against 'M/s Flywheel Logistics Pvt. Ltd.', from the corporate debtor M/s 'Flywheel Logistics Solutions Pvt. Ltd.' i.e. FLSPL, the Respondent No 2, which is a separate corporate entity, having different CIN Number. It is also on record that the mandatory primary requirement for filing petition U/S 9 of the 'Insolvency and Bankruptcy Code, 2016' is the service of the Demand Notice U/S 8 of the Code. The demand notice should have been served along with the copy/bill(s) / invoice(s) on the 'Corporate Debtor' - But in the present case, the Bill / Invoice was raised against, M/s Flywheel Logistics Private Limited, whereas the mandatory demand notice under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... And Kanthi Narahariv.P. Singh, Technical Member Amit Dhaka, Manohar Malik and Ms. Nupoor Maharaj, Advs. for the Appellant. J.M. Kalia, Ms. Bhawana Garg, Ms. Sudha Sachdeva, Prabhat Ranjan Singh, Abhishek Anand, Anant A. Pavgi and Tushar Tyagi, Advs. for the Respondent. JUDGMENT V. P. Singh, The appellant - Anil Syal, Ex. Director and Shareholder of the Company 'Flywheel Logistics solutions Pvt. Ltd.', Respondent' No 2 has preferred this Appeal under Section 61 of the 'Insolvency and Bankruptcy Code, 2016, against the impugned order dated 2-9-2019, passed by the Adjudicating Authority (National Company Law Tribunal) New Delhi Bench in [C. P. No. (IB)- 1488/ND/2018, ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics Services were provided by the Applicant/Respondent No1 to the 'Corporate Debtor', and under that invoices were raised for the amount totalling to ₹ 66,00,860/- for the period January 2017 to August 2017, after that part payment of ₹ 35,68,484/- was received from the 'Corporate Debtor' against the pending Bills. The Respondent No 1/ Applicant, stated that balance confirmation of ₹ 30 Lakhs was admitted by the 'Corporate Debtor' vide e-mail dated 27th July 2018. But despite repeated e-mail and reminders, the outstanding dues were not paid by the 'Corporate Debtor' to the Respondent /Applicant. 5. After that the Respondent No.1/ Applicant issued Demand Notice under Section 8 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant further contended that the Adjudicating Authority failed to appreciate that there is 'pre-existing dispute' though there were enough evidence and documents which were relied upon by the Respondent No.1- 'Operational Creditor' itself, and were sufficient beyond any doubt to show the 'Pre-existence of dispute'. 9. The appellant also contends that the Respondent No. 1 -'Operational Creditor' has issued Demand Notice under Section 8 of the 'Insolvency and Bankruptcy Code, 2016 under Form 3 and Form 4, both dated 1st August 2018. But the Demand Notice served on the Respondent No. 2, relates to the separate corporate Entity by the name of 'M/s Flywheel Logistics Pvt. Ltd.', having deferent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity, having different CIN Number. 13. It is also on record that the mandatory primary requirement for filing petition U/S 9 of the 'Insolvency and Bankruptcy Code, 2016' is the service of the Demand Notice U/S 8 of the Code. The demand notice should have been served along with the copy/bill(s) / invoice(s) on the 'Corporate Debtor'. But in the present case, the Bill / Invoice was raised against, M/s Flywheel Logistics Private Limited, having CIN No. U60200DL2009PTC192531, whereas the mandatory demand notice under Section 8 of the 'IBC' has been served against the 'Flywheel Logistics Solutions Pvt. Ltd.' having CIN No. U60232DL2015PTC288609. 14. Therefore, on the above basis, it is clear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. We further direct the IRP/RP to release the 'Corporate Debtor' from all the rigour of law imposed on account of admission of petition U/S 9 of the Code. The 'Corporate Debtor' shall function independently through its Board of Directors from immediate effect. The Adjudicating Authority is further directed to fix the CIRP cost and fees to be paid to IRP / RP which is to be initially paid by the 'Corporate Debtor'. The 'Corporate Debtor' will be entitle to recover the CIRP costs incurred and fees paid to IRP / RP by adjusting in dues, if any, or by execution from 'Operational Creditor'. 18. The above order shall not prejudice the rights of the appellant to initiate action against Flyw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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