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TMI Blog2022 (2) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... up a pressure for releasing the payment. However, the provisions of the Code cannot be applied from chasing of payment as held by the Hon ble Supreme Court in TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED VERSUS EQUIPMENT CONDUCTORS AND CABLES LIMITED [ 2018 (10) TMI 1337 - SUPREME COURT] has already held that IBC is not intended to be a substitute to a recovery forum and also laid down that whenever there is existence of real dispute, the IBC provisions cannot be invoked - All these reflect that the delivery of demand notice is a must for any further action under Section 9 of the Code. There are no infirmity in the impugned order of the Adjudicating authority - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the clutches of the Code. 10. Therefore, for the initiation of CIRP u/s 9 of the IBC by the OC, the OC is required to deliver the demand notice upon the CD u/s 8 of the Code. The main object of the inception of provisions of Section 8 is , "this ensures that OC, whose debt claims are usually smaller, are not able to put the Cd into the insolvency resolution process prematurely or initiated the process for extraneous considerations. It may also facilitate informal negotiations between such creditors and the CD, 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 OC' is mentioned. 11. in the light of the aforesaid provision and the submissions made by the ld. Counsel, when we shall consider the case of the e Applicant, then this AA is of the considered view that under Rule 5 of the Insolvency and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent at their email id and the email ids of these 'Directors' were not available on the public domain. He has also attached the Ledger copy of the CD as appearing in the appeal paper book at page 71 alongwith the copy of invoices). 6. With all the details the Appellant/OC is seeking the relief of setting aside the impugned order dated 12.03.2020 passed by the Adjudicating Authority as stated above etc. 7. The Ld. counsel for the Respondent has submitted the followings: a. The CD/Respondent has not received the mandatory 'demand notice' under Section 8 of the Code. They have also not received the email and have also confirmed the email given in the 'Company Master Data' is not of the 'Directors' of the OC/Respondent Company. They have disowned the receipt of such email. They have also leveled the allegations that the Appellant/OC being a supplier of the Respondent and the Respondent was in regular contact with the OC/its Director on all of the updated email ids and contact numbers yet the Appellant choses to skip the actual and updated communication details and issued notice to the wrong email ids due to vested interest and is bluntly misleading this Tribunal deliberately and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce or invoice in relation to such dispute; (b) the [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 [payment] of the operational debt in respect of which the default has occurred. Section 9 - Application for initiation of corporate insolvency resolution process by operational creditor. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under subsection (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 suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub-clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section." Rule 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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