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TMI Blog2020 (10) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... me to time to the Corporate Debtor for preceding years and maintaining running account. The Corporate Debtor also used to make payments some time as per bills or sometimes ad-hoc payments since there was series of sale and payments. As per the statement of account maintained by the Operational creditor there is cumulative outstanding balance of Rs. 18,02,043/- towards principal amount along with interest on unpaid amount of Rs. 8,52,243/- which is due and outstanding against the Corporate Debtor along with interest on the outstanding balance. 3. The Operational Creditor/Applicant issued the Demand Notice on 06.06.2019 U/s 8 of the IBC, 2016 under the IBC, 2016. The Demand Notice was duly served to the Corporate Debtor through speed post to the Registered Office of the Corporate Debtor which was returned with remarks "Not Delivered No such person in the address" and to the other office address of the Corporate Debtor at Noida as mentioned at Page No. 3 under the Memo of Parties of the Application, which was delivered. No reply to the Demand Notice was received from the Corporate Debtor. 4. In view of the Corporate Debtor's failure to reduce or liquidate its liability, the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent/Corporate Debtor against the above mentioned stamped invoices is Rs. 30,702/-. The Operational Creditor has raised a wrong claim of Rs. 18,02,043/- with interest amount of Rs. 8,52,243/-. d. That there are balance amount of Rs. 3,19,640/- due and payable in the month of February, 2016 and the amount of Rs. 30,372/- shown in the invoices, which are duly stamped by the Corporate Debtor with interest rate has been paid by the Corporate Debtor through a Demand Draft Number 77517 dated 23.10.2019 drawn on Union Bank of India, Noida amounting of Rs. 6,00,000/- towards all pending liabilities till 23.10.2019 including the interest. e. That the attachment of the false and unstamped 29 invoices from 3rd March 2016 to 20th September, 2016 are for a total amount amounting to Rs. 18,93,189/- by the Operational Creditor which are not admitted. 6. During the course of arguments, it was contended by the Operational Creditor that during the hearing held on 24.10.2019, the Corporate Debtor appeared and handed over a Demand Draft dated 23.10.2019 for Rs. 6,00,000/- as upfront amount as part payment towards principal claim of Rs. 18,02,043/-[admitted to the extent Rs. 18,00,799/- and sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice or invoice in relation to such dispute; (b) the 2[payment] of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 3[payment] operational debt in respect of which the default has occurred." Mere plain reading of the provision shows that the Corporate Debtor shall within a period of 10 days of the receipt of the demand notice of copy of invoices mentioned in Section 8(2), bring to the notice of the Operational Creditor existences of disputed if any or record of pendency of suit or arbitration proceeding filed by the receipt of such notice or invoice in relation to such dispute but admittedly this has not been done by the Corporate Debtor. 10. Now at this juncture, we would like to refer the decision of Hon'ble Supreme Court in "Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software (P) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reply was sent to the Demand Notice and hence no dispute was raised under Section 8 sub Section 2 of the Code and the amount claimed by the Operational Creditor has not been paid by the Corporate Debtor and we have also noticed that the application is complete. We further find that the amount claimed by the Operational Creditor is more than Rs. 1 lakh which is the minimum threshold limit fixed under IBC, 2016 and the present petition being filed on 02.08.2019 is within limitation, being within three years from the date of the cause of action. Therefore, under such circumstances, we have no option but to reject the contention of the Corporate Debtor that the application is not maintainable and it is liable to be rejected rather we are of the considered view that the Operational Creditor has succeeded to establish this fact that he raised the last invoice on 20.09.2016, the Corporate Debtor has defaulted in paying the dues and the present application is within limitation as it was filed on 02.08.2019. 12. Considering the aforesaid circumstances, this Adjudicating Authority is inclined to admit this petition and initiate CIRP of the Respondent. Accordingly, this petition is admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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