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TMI Blog2021 (11) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... mation mail by Corporate Debtor, is more than sufficient to prove the existence of the 'operational debt' and hence the contentions raised by the Learned Counsel for the Corporate Debtor in this regard are not sustainable and valid in the eye of law, there is no such pre-existing dispute and also the Demand Notice issued by the Operational Creditor does not suffer from any legal infirmities. The Petition as filed by the Operational Creditor is required to be admitted under Section 9(5) of the IBC, 2016 - petition admitted - moratorium declared. - IBA/1449/2019 - - - Dated:- 4-10-2021 - Sucharitha R., Member (J) And Anil Kumar B., Member (T) For the Appellant : Avinash Krishnan Ravi, Advocate For the Respondents : A.G. Sathyanarayana, Advocate ORDER Sucharitha R., Member (J) 1. Under Consideration is an Application filed under Section 9 of the Insolvency Bankruptcy Code, 2016 ( hereinafter referred to as IBC, 2016 ) by M/s. SH Haryana Wires Limited (hereinafter called as Operational Creditors ) for the purpose of initiating the Corporate Insolvency Resolution Process (CIRP) against M/s. Venture Power Systems India Private Limited (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default, i. Copies of 4 Purchase Orders. ii. Copies of Twenty Invoices. iii. Form 4 - Demand Notice, dated 29.10.2019. iv. Bank Accounts statement of Operational Creditor. v. Accounts statement issued by the Corporate Debtor. 6. On perusal of the records, it is found that the operational creditor has sent a Demand Notice in Form-4 along with invoices, for which a reply was also sent by the corporate debtor disputing the format of the demand notice received. The typed set of papers also holds the mail conversation between the parties along with the Ledger Accounts and Account statements. 7. The Learned Counsel for the Corporate Debtor has filed the Reply and submitted that the Demand Notice sent under Form 4 is invalid, however a notice under Form 3 should have been given. It is further submitted that there exists prior dispute referring to the email conversations attached in the typed set in Pg. Nos. 98-104. The Learned Counsel for the Corporate Debtor has also submitted that several invoices among the relied invoices are not signed, it is further averred that the respondent having agreed to compromise had also issued a compromise memo after paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les, 2016, speak of Demand Notices by the Operational Creditor and applications by the operational creditor in the following terms: 5. Demand notice by operational creditor.-- (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely.-(a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any 10. Thus, from perusal of Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, it emerges that the Demand Notice under Section 8 of IBC, 2016 can be issued by the Operational Creditor in two f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such notice must bring to the notice of the Operational Creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the Adjudicating Authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is a mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact or is not spurious, hypothetical or illusory, the Adjudicating Authority has to reject the application. 15. Based on the documents in the typed set, more particularly, the balance confirmation mail by Corporate Debtor dated 29.07.2019 in Pg. No. 104 of the typed set is more than sufficient to prove the existence of the 'operational debt' and hence the contentions r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, quota, concession, clearance or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license or a similar grant or right during moratorium period; 17. However, during the pendency of the moratorium period in terms of Section 14(2)(2A) and 14(3) as extracted hereunder: (2) The supply of essential goods or services to the Corporate Debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (2A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the Corporate Debtor and mange the operations of such Corporate Debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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