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TMI Blog2020 (9) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... ument to show that unpaid operational debt has been paid within ten days of the receipt of the demand notice - Section 8 and 9 cast a duty upon the operational-creditor as well as Corporate Debtor to act as per Section 8 and if they fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the Corporate Debtor can be taken into consideration. Since it is specifically mentioned in Section 8(2) of the Code that within ten days from the date of the receipt of the demand notice, the corporate-debtor is required to bring to the notice of the operational-creditor, the existence of dispute or the documents regarding the payment of debt, therefore, we have no option, but to hold that since the corporate-debtor fails to give the reply of the demand notice and raised the disputes, hence after his appearance in response to the notice, he cannot raise it by filing the reply to the application filed on behalf of the operational-creditor and this has also been held by another NCLT, Delhi Bench in the case of JAI LAXMI TRADERS VERS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Operational Creditor Company at the registered office in order to be ensured about the infrastructure of the Operational Creditor Company. They met the Senior Management persons as well before striking the deal. Thus, written contract was entered into between the Operational Creditor and the Corporate Debtor. ii. The Operational Creditor raised various bills upon the Corporate Debtor towards the freight charges for the transportation carried out by the Operational Creditor for the Corporate Debtor along with the proof of deliveries of the consignments of the Corporate Debtor. The bills which remain pending for payment by the Corporate Debtor to the Operational Creditor are mentioned by the Operational Creditor in a separate bill wise ledger of the Corporate Debtor, which is attached as an annexure 1 to the present application. The last pending bill is dated 07.08.2019. Further, Applicant while fulfilling its part of contractual obligations provided its services strictly in terms of the Contract executed with Servel India Pvt. Ltd. (the Corporate Debtor ) which was renewed/amended from time to time and provided the Operational Creditor the relevant invoices, computer gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for initiating the Corporate Insolvency Resolution Process under the IBC Code, 2016 save and except specifically admitted herein. iii. It is submitted that present application has been filed without having any cause of action in the favour of the in as much as Petitioner is not an Operational Creditor in terms of the provisions of the IBC code 2016. iv. It is submitted that the Petitioner has falsely claimed to be a operational creditor in the company. The respondent vehemently denies having entered into any agreement with the alleged operational creditor v. That there are serious disputed facts in the present case and the said dispute can only be resolved in trial. vi. The Application is based on conjectures and surmises and no cogent proof for the deposit of money has been furnished thereof. vii. The respondent denies the alleged debt of ₹ 7,94,035/- and reiterates that there is no debt due or payable by the Respondent to the Operational Creditor. viii. The respondent denies the authenticity and/or genuineness of the invoices filed by the Operational Creditor. The alleged invoices are neither stamped nor signed by the authorized persons of the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence of dispute or record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such disputes. 7. Whereas the Operational Creditor in its application has produced the postal document to show that the demand notice was duly delivered on the registered address of the Corporate Debtor on 21.09.2019 as well as to its directors, therefore, before going into the merit of the case of the parties we would like to refer the provision contained under Section 8 and 9 of the IBC, 2016 and the same is quoted below: Section: 8. Insolvency resolution by operational creditor (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debt or copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor - a) Existence of a dispute, 1[if any, or] record of the pendency of the suit or arbitrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order- (i) Admit the application and communicate such decision to the operational creditor and the corporate debtor if - (a) The application made under sub-section (2) is complete; (b) There is no 3[payment] of the unpaid operational debt; (c) The invoice or notice for payment to the corporate debtor has been delivered by the operational creditor; (d) No notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) There is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) Reject the application, and communicate such decision to the operational creditor and the corporate debtor, if - (a) The application made under subsection (2) is incomplete; (b) There has been 1[payment] of the unpaid operational debt; (c) The creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) Notice of dispute has been received by the operational creditor or There is a rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey fail to fulfil the conditions of Section 8 and 9 then in that case neither the application filed by the operational-creditor is maintainable nor the plea of existing of disputes or the payment of debt subsequently taken by the Corporate Debtor can be taken into consideration. 9. At this juncture, we would also like to refer the decision reported in the case of Nathi Devi v. Radha Devi Gupta MANU/SC/1071/2004 : 2005 (2) SCC 271, and we find that Hon'ble Supreme Court in Para 14 of the judgment held that: It is equally well settled that in interpreting a statue, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statue should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. 10. In the light of that decision, when we shall consider the case in hand then we are of the considered view that since it is specifically mentioned in Section 8(2) of the Code that within ten days from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process: Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 or passes an order for liquidation of corporate debtor under section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be. 13. The Operational Creditor has proposed the name of any IRP. Accordingly, we appoint, Mr. Reetesh Kumar Agarwal, an Insolvency Professional, Registration No. IBBI/IPA-001/IP-P00878/2017-2018/11475 email- [email protected] duly empanelled with the IBBI as the IRP. He is directed to take such steps as are mandated under the Code, more specifically under Sections 15, 17, 18, 20 and 21 and shall file his report before the Adjudicating Authority. 14. The Operational Creditor is directed to deposit a sum of ₹ 2 lakhs to meet the immediate expenses of IRP. The same shall be fully accountable by the IRP and shall be reimbursed by the CoC, to the Operational ..... X X X X Extracts X X X X X X X X Extracts X X X X
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