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TMI Blog2019 (11) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... Creditor may file an application before the Adjudicating Authority - When we read these two provisions together than it can be said that CIRP can only be initiated by filing an application under Section 9 of the Code, whereas the Section 8 lays down a provision which cast a duty upon the Operational Creditor to deliver a demand notice before taking any action under Section 9 of the Code. This Adjudicating Authority would like to consider the submissions made on behalf of the Operational Creditor on the point of limitation. Admittedly, it is a case of Operational Creditor that the invoices are for the period for 2nd April 2014 to 2nd June 2015. This Adjudicating Authority is of the considered view that limitation shall be calculated from the period when right to sue accrues and the date on which the Operational Creditor filed the application and will not be calculated from that day on which the Operational Creditor had sent the email upon the Corporate Debtor on 23rd July, 2016 when the Operational Creditor has not received the reply from the Corporate Debtor in respect of the e-mail dated 23rd July, 2016. At this juncture, we would like to mention this fact that first demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .09.2014, 14.02.2015, 19.02.2015 and 02.06.2015, as reflected in Corporate Debtor's Ledger Account. The invoices, amounting to ₹ 23,87,330/- is due and payable by the Corporate Debtor to the Petitioner. The Petitioner has, therefore, filed this petition as an Operational Creditor praying for initiation of Corporate Insolvency Resolution Process of the Corporate Debtor for its inability to liquidate their claim of ₹ 23,87,330/-. 3. The Operational Creditor issued the demand notice dated 21.09.2018 as required under Section 8 of the Code was issued, demanding a total sum of ₹ 23,87,330/- which returned unserved. 4. In view of the Corporate Debtor's failure to reduce or liquidate its liability, the present petition has been filed in the required format praying for initiation of the Corporate Insolvency Resolution Process of the Corporate Debtor. 5. The Corporate Debtor has been duly served by Courier Service. None was present on behalf of the Corporate Debtor hence they were proceeded ex-parte vide order dated 26.09.2019. 6. Ld. Counsel for Operational Creditor in course of argument submitted that Ld. Counsel for the petitioner submitted that alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process. (2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor; (b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt 2 [by the corporate debtor, if available;] [(d) a copy of any record with information utility c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to deliver the demand notice of unpaid Operational Creditor and liberty is given to the Corporate Debtor to bring the notice of the Operational Creditor regarding existence of the disputes and the payment of or other unpaid Operational Debt within a time of 10 days of the receipt of the demand notice. Whereas Section 9 of the Code says that after the expiry of period of 10 days from the date of delivery of the notice or invoice demanding payment under sub-section 1 of Section 8, if the Operational Creditor does not receive the payment from the Corporate Debtor or notice of the dispute has not been raised by the Corporate Debtor then the Operational Creditor may file an application before the Adjudicating Authority. When we read these two provisions together than it can be said that CIRP can only be initiated by filing an application under Section 9 of the Code, whereas the Section 8 lays down a provision which cast a duty upon the Operational Creditor to deliver a demand notice before taking any action under Section 9 of the Code. 10. In the light of aforesaid provisions discussed above now this Adjudicating Authority would like to consider the submissions made on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the debt further fell due as on 18.08.2016, when an intimation via e-mail was sent to Corporate Debtor with regards to the visit of Director of the Operational Creditor to Delhi, but despite of intimation no heed or attention was paid to the said email too nor even replied. Another email was sent on 23.09.2016, with regard to C Form, which was also not replied by the Corporate Debtor. 13. At this juncture, we would also like to consider the submissions of the Ld. Counsel for the Operational Creditor that the Operational Creditor has taken a step for initiation of proceedings under Section 9 of the Code from the date when he sent the Demand Notice i.e. on 21.09.2018 and filed the application on 12.03.2019 and if the limitation is calculated from 23.07.2016, the date when the Operational Creditor sent the e-mail and when no reply to the e-mail dated 23.07.2016 was received from the Corporate Debtor, then the same is within the period of prescribed under Article 137 of the Limitation Act and the three years will be calculated from 23.07.2016. 14. In light of aforesaid submissions, we would like to consider the provisions contained under Section 8 9 of the Code wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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