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TMI Blog2019 (10) TMI 1354X X X X Extracts X X X X X X X X Extracts X X X X ..... te informal negotiations between such creditors and the corporate debtor, which may result in a restructuring of the debt outside the formal proceedings , and that is the reason in Section 8 of the IBC, the word, 'deliver a demand notice of unpaid operational creditor' is mentioned instead of 'sending a demand notice of unpaid operational creditor'. The purpose to deliver the notice is to give an opportunity to the Corporate Debtor to raise a dispute or negotiate with the operational creditor and that was the intention of the legislatures, that is the reason the word 'delivery' has been given in place of 'sending or giving the notice upon the person concern'. This Tribunal is of the considered view that under Rule 5 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016, there are two modes for sending demand notice, one is, either at the registered office by hand, registered post or speed post with acknowledgement due, or second one, by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor, and on the basis of the facts stated in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the corporate debtor with the various purchase order for supply of pet bottles. The operational creditor supplied the corporate debtor with goods against invoices raised under the terms contained in the invoices having been placing purchase order from the operational creditor. ii. On account of supplies made by the operational creditor invoices totalling of ₹ 39,69,803/- have remained unpaid since 30.05.2018. Furthermore, the corporate debtor is liable to make payment of accrued interest on the pending invoices at the rate of 25%. As such the total amount payable by corporate debtor as operational debt comes to ₹ 43,54,878/- as on 31.12.2018. As per the terms of the payment contained in the invoices raised on behalf of operational creditor in the name of M/s. Unnao Distilleries Breweries Ltd, the payment was to be made within 30 days from the date of dispatch so the debt for the first time became due under the invoice raised on 30.05.2018. iii. The counsel for the operational creditor further stated that he has requested the corporate debtor to make payment several times but on receiving no reply, the operational creditor send a notice dated 31.01.2019 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional creditor which shows that notice was not delivered due to insufficient address . 9. At this juncture, I would like to refer the arguments advanced by the learned counsel for the applicant, who by filing supplementary affidavit claim that notice was sent as per Rule 5(1) of the Insolvency Bankruptcy (Application to Adjudicating Authority), Rules 2016 and in support of that he enclosed some of the correspondence made through email to the corporate debtor. 10. But before considering the submissions of the learned counsel for the applicant I would like to refer the provision, under which the notice is required to be sent. Rule 5 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016, lays down that provision, how the notice would be delivered U/s 8 of the IBC, Rule 5 of the Insolvency Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is quoted below :- 5.(1) An operational creditor shall deliver to the corporate debtor, the following documents, namely.- (a) a demand notice in Form 3; or (h) a copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the debt outside the formal proceedings , and that is the reason in Section 8 of the IBC, the word, 'deliver a demand notice of unpaid operational creditor' is mentioned instead of 'sending a demand notice of unpaid operational creditor'. The decision upon which the learned counsel for the applicant placed reliance, (K. Bhaskaran vs. Sankaran Vaidhyan Balan And Another (1999) 7 SCC, 510 is related with Section 138 of the Negotiable Instruments Act. Therefore, at this juncture, I would like to refer Section 138(b) of the N.I. Act, which is quoted below :- The payee or the holder in due course of the cheque as the case may be; makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid . 13. A mere plain reading of the provision shows that, in this provision like Section 8 of IBC, the word 'deliver the notice' is not mentioned, rather it is mentioned that 'the payee or the holder makes a demand for the payment of the said amount of money by giving a notice, in writing, to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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