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TMI Blog2019 (8) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... shed position that I B Code, 2016 is complete Code in itself and provisions of Indian Evidence Act, 1872 and General clause Act, 1897 are not applicable unless specifically covered in IBC, 2016. For this reason only, the Petition is filed by the Operational Creditor is liable to be dismissed. Petition dismissed. - CP(IB)NO. 1306/KB/2018 - - - Dated:- 27-8-2019 - M.B. Gosavi, Judicial Member And Virendra Kumar Gupta, Technical Member Shailender Kumar, Adv. and Karan Chhabra, Pr. CS for the Applicant. Shashi Agarwal, CA and Tapas Das, Adv. for the Respondent. ORDER Virendra Kumar Gupta, 1. This is an application filed by M/s. K.B. Polychem (India) Ltd./the Operational Creditor for initiating Corporate Insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y at page 110 and 114 containing copies of demand notice and it was submitted that notice was sent at registered office address of the Company was not delivered but the notice to the Director of the Company had been sent at their residential address which was not returned. He further submitted that as per the provisions of clause 26 of General Clauses Act, 1897 and in the Section 114 of Indian Evidence Act, 1872, if the post sent did not return when it was sent on the correct address as available from the statutory records, it is to be accepted as proper service of notice of demand post for the purposes of Insolvency and Bankruptcy Code, 2016. He also explained the nature of supply of modalities of payments and details of payments received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble National Company Appellate Law Tribunal in the case of Rajeev K Agarwal v. Panipat Texo Fabs (P.) Ltd. Exclusive Overseas (P.) Ltd. [Company Appeal (AT) (Insolvency) No. 715 of 2018, dated 27-11-2018], to contend that there was no preexisting dispute and the claims made by the Corporate Debtor now were just to defeat the Petition filed under section 9 of Insolvency and Bankruptcy Code, 2016, hence, not valid. He also emphasized on the fact that no evidence as regard to dispute of substandard/defective quality of material as well as agreement by the Operational Creditor to waive of the impugned sum was adduced by the Corporate Debtor. 5. We heard both the parties and have also perused the material on record. 6. It is observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 2016, strict onus lies on the shoulders of Corporate Debtor to show the existence of dispute before delivery of notice u/s 8, otherwise the purpose of section 8 and 9 proceeding would get defeated if frivolous contentions of Corporate Debtor are accepted and, simultaneously, Operational Creditor cannot use the mechanism of I B Code, 2016 as a recovery tool. It is also noteworthy that this authority is not required to prove the veracity of the claim of either party and is only concerned with the aspect of existence of dispute prior to delivery of notice u/s 8 of the I B Code, 2016 for the purpose of deciding the fate of application under section 9 of I B Code, 2016. In view of above, we find no necessity to discuss the merits of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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