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TMI Blog2021 (7) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... rification affidavit. More so, said affidavit does not affect the merit of the present application. Issuance of demand notice - HELD THAT:- The contention of the operational creditor in respect to the demand notice issued by the advocate on behalf of the operational creditor is without any authorization is not valid. This issue has already been settled by the supreme court in the matter of MACQUARIE BANK LIMITED VERSUS SHILPI CABLE TECHNOLOGIES LTD. [ 2017 (12) TMI 850 - SUPREME COURT] that the demand notice issued by the advocate is valid even without authorization - The invoice has been raised by the operational creditor on 09.03.2018 after statement between the operational creditor and the corporate debtor vide communicated dated 16.02.2018 issued by the operational creditor and the same was acknowledged by the director of the corporate debtor. Thus, this application has been filed within the limitation. The amount claimed as well as acknowledged by the corporate debtor also meets the threshold limit as prescribed under section 4 of IBC 2016. The plea as regards to pre-existing dispute raised by the corporate debtor has not been substantiated by bringing any cogent evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptcy Code, 2016 (hereinafter referred to as IBC 2016 ) read with rule 5 of IBBI(Application to the Adjudicating Authority) Rules, 2016 (hereinafter referred to as AA Rules ) in form 3 on 20.09.2018 for the payment of the said outstanding amount. The corporate debtor replied to the said demand notice on 10.10.2018 wherein the corporate debtor raised the pre-existing dispute and stated that the payment of the outstanding debt has been withheld by the corporate debtor due to the reason that, order for purchasing of goods were placed to operational creditor along with services of the purchased goods but, operational creditor failed to provide the agreed services. 5. Thereafter, the operational creditor filed the present application for initiation of the Corporate Insolvency Resolution Process against the corporate debtor. The Corporate debtor filed the reply to the present application and contended that the present application is not accompanied by the no dispute affidavit as envisaged under section 9(3) (b) of IBC 2016, therefore, the present application is liable to be rejected on this ground. The corporate debtor further contended that the application filed by the operational c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the corporate debtor in the respect that the present application is not supported with an affidavit as prescribed under rule 10 of AA Rules and Rule 20 to 24 and 26 of NCLT Rules 2016 is not valid. On perusal of the affidavit in support of the instant application, it reveals that the contents of said affidavits are clear and consist of contents required for verifying the present application. No format as such has been prescribed by the aforesaid rules for verification affidavit. More so, said affidavit does not affect the merit of the present application. 11. The contention of the operational creditor in respect to the demand notice issued by the advocate on behalf of the operational creditor is without any authorization is not valid. This issue has already been settled by the supreme court in the matter of Macquarie Bank Limited Vs. Shilpi Cable Technologies Ltd. 2018 that the demand notice issued by the advocate is valid even without authorization. The advocate can issue the demand notice under section 8 of IBC 2016 without authorization merely instruction is sufficient. We also observed that the pre-existing dispute raised by the corporate debtor is baseless and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. II. The order of moratorium shall have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process or until this Adjudicating Authority approves the Resolution Plan under sub-section (1) of Section 31 or passes an order for liquidation of Corporate Debtor Company under Section 33 of the Insolvency Bankruptcy Code, 2016, as the case may be. III. The operational creditor has not recommended any Resolution Professional to appoint as an IRP, hence, we hereby appoint Mr. Pradeep Srivastava having registration No. IBBI/IPA-002/IP-NO 1012/2020-2021/13299, email Id, [email protected] to act as an IRP under Section 13(1) (c) of the Code. IV. The IRP shall perform all functions as contemplated, inter-alia, by Sections 17, 18, 20 21 of the Code. It is further made clear that all personnel connected with the Corporate Debtor, its Promoter, or any other person associated with management of the Corporate Debtor are under a legal obligation under Section 19 of the IB Code extend every assistance and co-operation to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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