9911796707
TMI Blog2020 (8) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- There are four Annexures with the demand notice (A) a copy of Agreement dated 04.01.2017, (B) a copy of invoice dated 08.02.2017, (C) a copy of Bank Statement, (D) a copy of particulars of claim. The Corporate Debtor has not filed the copy of Annexures to the demand notice and according to the Operational Creditor annexure (D) copy of particulars of claim is a notice in prescribed format. Therefore, we are unable to appreciate the objection raised by the Appellant (Corporate Debtor). This objection is not raised before Adjudicating Authority. Therefore, there is no finding of Adjudicating Authority on this issue. Whether an advance amount for supply of goods can be considered as an Operational Debt under Section 5(20) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cating Authority (National Company Law Tribunal) Hyderabad Bench, Hyderabad, in CP(IB)-334/09/HDB/2019. Whereby admitted the Application, filed by the Respondent No. 1 under Section 9 of I B Code and initiated Corporate Insolvency Resolution Process (In Short CIRP ) against the Respondent No. 2. 2. Brief facts of this case are that Respondent NO. 1 (referred as Operational Creditor) is in business of Export and Import of Commodities. The Operational Creditor has entered into Sale and Purchase Agreement dated 04.01.2017 with the Respondent No. 2 (referred as Corporate Debtor). As per the Agreement the Corporate Debtor has agreed to deliver 130 Metric Tons of Sugar to the Operational Creditor. Pursuant to the agreement, the Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of a default the Operational Creditor deliver a demand notice to the Corporate Debtor in Form No. 3 or in Form No. 4 as prescribed under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Service of such demand notice is precondition for filing an Application under Section 9 of I B Code. The demand notice is not in a prescribed format, hence, the Application under Section 9 of I B Code could not have been admitted. For this purpose, he placed reliance on the Judgment of this Appellate Tribunal in the case of Company Appeal (AT) (Ins) No. 31/2017 Era Infra Engineering Ltd. Vs. Prideco Commercial Projects Pvt. Ltd. decided on 03.05.2017, Company Appeal (AT) (Ins) No. 117/2017 M/s Sabari Inn Pvt. Ltd. Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 24.01.2019. Company Appeal (AT) (Ins) No. 223 of 2019 Roma Infrastructure India Pvt. Ltd. Vs. A.S. Iron Steel Pvt. Ltd. decided on 22.04.2019, Company Appeal (AT) (Ins) No.1454 of 2019 Mironda Trade Commerce Pvt. Ltd. Vs. Sai Laxmi Tulasi Ferros Pvt. Ltd. decided on 16.12.2019. 7. On the other hand, Learned Counsel for the Respondent No. 1 (Operational Creditor) submits that the notice under Section 8(1) of I B Code is not prescribed in format, this ground has not been taken before the Learned Adjudicating Authority and even in Memo of Appeal, therefore, at the stage of argument the Corporate Debtor should not be permitted to raise such an objection. It is incorrect to say that the Corporate Debtor has not served the notice in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand notice dated 07.03.2018. There are four Annexures with the demand notice (A) a copy of Agreement dated 04.01.2017, (B) a copy of invoice dated 08.02.2017, (C) a copy of Bank Statement, (D) a copy of particulars of claim. The Corporate Debtor has not filed the copy of Annexures to the demand notice and according to the Operational Creditor annexure (D) copy of particulars of claim is a notice in prescribed format. Therefore, we are unable to appreciate the objection raised by the Appellant (Corporate Debtor). This objection is not raised before Adjudicating Authority. Therefore, there is no finding of Adjudicating Authority on this issue. 12. Now, we have considered the arguments in regard to second issue, this is admitted fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the aforesaid fact, we find that the Respondent had not supplied any goods nor provided any services and, therefore, it does not come within the meaning of Operational Creditor We have taken the same view in the case of Roma Infrastructure India Pvt. Ltd. (Supra)and held that Roma Infrastructure India Pvt. Ltd. has not supplied the goods nor provided any services to the Respondent A.S. Iron and Steel (I) Pvt. Ltd. It advanced payment to Respondent (Operational Creditor) for supply of goods cannot be treated to be an Operational Debt and the Application under Section 9 of I B Code, was not maintainable. 14. As aforesaid, we are of the considered view that the advance amount paid by the Respondent No. 1 to Respondent No. 2 for s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
