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TMI Blog2022 (4) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Creditor that notice was duly issued on correct address and was served on the Respondent Corporate Debtor. The learned Counsel for the Appellant relied on judgment of this Tribunal in ANIL SYAL VERSUS SANJEEV KAPOOR [ 2020 (1) TMI 472 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] as well as JAYA PATEL VERSUS GAS JEANS PVT. LTD. ORS. [ 2018 (10) TMI 1909 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and contends that service of notice under Section 8 is sine qua non for proceedings under Section 9 of the Code. There can be no doubt about the above proposition laid down by this Tribunal in the above cases - However, present is a case where, notice was duly served by the Operational Creditor on the correct address of the Appellant-Corporate Debtor. Operational Debt due or not - HELD THAT:- The mere fact that when the Corporate Debtor did not pay the amount, suit for recovery was filed in the year 2016 by the Operational Creditor, which was also Decreed on 08.09.2016, does not in any manner effect the transaction out of which the amount fell due. The fact that amount was adjudicated and a Decree was passed, in no manner take away the nature of ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recovery of ₹ 16,44,500/- along with interest @ 12% per annum. The Operational Creditor filed Execution Petition, which was transferred to the Court of District Sessions Judge, South District for Execution of the Decree being case No.424 of 2019. (iii) The Operational Creditor issued notice under Section 8 of the Code in Form-3, dated 06.04.2019 to the Corporate Debtor claiming amount of debt as ₹ 25,04,630/-. The notice under Section 8 of the code was not replied by the Corporate Debtor. (iv) An Application under Section 9 was filed by the Operational Creditor before the National Company Law Tribunal, New Delhi being Company Petition No.IB 1462/ND/2019. The Application filed under Section 9 was replied by the Corporate Debtor vide its reply dated 18.09.2019. (v) The Adjudicating Authority by the impugned order dated 31.07.2020 has admitted the Application and appointed an Interim Resolution Professional ( IRP ), that is, Mr. Manish Kumar Aggarwal. Aggrieved by the order dated 31.07.2020, this Appeal has been filed by the Suspended Director of Corporate Debtor. 3. We have heard Shri Arun Srivastava, learned Counsel for the Appellant and Shri Bharat Arora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y which was filed to Section 9 Application of the Operational Creditor, there was no pleading on behalf of the Appellant that notice under Section 8 has not been served. The Operational Creditor has filed an affidavit of compliance and an affidavit has also been filed before the Adjudicating Authority along with which, photocopy of the receipt issued by India Post was attached. In the receipt issued by India Post the address of the Corporate Debtor is 24 instead of 54-A, which was mistake by the Postal Authorities. Whereas notice was issued in the name of Corporate Debtor at the correct address of the Corporate Debtor, that is, 54-A, Sainik Farm, Khanpur, New Delhi 110062. It is clear from the photocopy of the notice brought on the record by the Appellant himself at page 93. It is submitted that the submission of the Appellant that there was no operational debt due is incorrect. The debt, which was due on the Corporate Debtor was towards supply of poly propylene, which was supplied by the Operational Creditor to the Corporate Debtor. The amount of debt stood crystalized by judgment and Decree dated 08.09.2016 in Civil Suit No.149 of 2015. With regard to the third submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Creditor. Notice dated 06.04.2019 specifically mentioned in the List of Dates and Events as well as in Part-IV of the Application and copy of notice dated 06.04.2019 was filed as Annexure A-4 along with the Application. In the reply, which was filed by Corporate Debtor dated 18.09.2019, there was no plea that notice dated 06.04.2019 was not served on the Corporate Debtor. Both in the preliminary objection and reply on merits, there is no specific denial of non-receipt of notice dated 06.04.2019, which clearly supports the submission of learned Counsel of the Operational Creditor that notice was duly issued on correct address and was served on the Respondent Corporate Debtor. 8. The learned Counsel for the Appellant relied on judgment of this Tribunal in Company Appeal (AT) (Ins.) No.961 of 2019 in Anil Syal v. Sanjeev Kapoor Anr. as well as Jaya Patel v. Gas Jeans Pvt. Ltd. Company Appeal (AT) (Ins.) No.308 of 2018 and contends that service of notice under Section 8 is sine qua non for proceedings under Section 9 of the Code. There can be no doubt about the above proposition laid down by this Tribunal in the above cases. However, present is a case where, we are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the corporate debtor failed to pay the said outstanding amount and interest thereupon. Thereafter, the operational creditor instituted a suit for recovery against the Corporate Debtor bearing civil suit No.575402 of 2016 titled M/S Royale Resinex Private Limited versus M/S Greatech Telecom Technologies Private Limited , wherein Sh. Prashant Kumar, Ld. ADJ, Rohini Court, Delhi on 08.09.2016 was pleased to decree the said suit for recovery in favor of the Operational Creditor herein along with the interest and cost of the suit to be paid by the Corporate Debtor herein. 10. When we look into the transaction of account on which debt fell due, it is clear that transaction was for supply of poly propylene by the Operational Creditor to the Corporate Debtor and due to non-payment of the amount towards the material supplied by the Operational Creditor, the amount became due. The amount due, thus, is an amount under the provisions of goods and is fully covered with the definition of Section 5(21) of the Code, which is to the following effect: 5(21) operational debt means a claim in respect of the provision of goods or services including employment or a debt in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case, Application was filed under Section 9 in the year 2019 whereas suit of recovery was Decreed on 17th October, 2005, which was held to be barred by time. Paragraph 2 of the judgment is as follows: 2. The Corporate Debtor Jayant Vitamins Ltd. committed default on 13th September, 1996. Thereafter, Appellant filed suit for recovery which was decreed on 17th October, 2005 and a case for execution is pending. Therefore, we find that the application under Section 7 was barred by limitation. The above judgment in no manner help the Appellant in the facts of the present case. 14. The next judgment relied by learned Counsel for the Appellant is HDFC Bank Ltd. v. Bhagwan Das Auto Finance Ltd. Company Appeal (AT) (Ins.) No.1329 of 2019 , which was a case filed under Section 7 by the HDFC Bank. In the above case, this Tribunal came to the conclusion that Application was filed with malicious intent and on the said finding, the Appeal was dismissed. In the present case, the Application filed by Respondent under Section 9 cannot be said to be filed with malicious intent, when inspite of Decree passed by the Civil Court in favour of the Respondent, no payments were made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al creditor and cannot file an Application under Section 7 due to the above reason, the said Appeal was allowed and Application filed under Section 7 by allottee was held to be not maintainable. The above judgment does not help the Appellant in the present case. The judgment of this Tribunal in Digamber Bhonwen v. JM Financial Asset Reconstruction Company Limited Company Appeal (AT) (Ins.) No.1379 of 2019 as well as Sushil Ansal (supra) were also to the same effect, where the Appeal was allowed by rejecting the submission that in Section 3(10) of the Code, the definition of creditor , the decree holder is included. In the above cases, the Application came for consideration was an Application under Section 7 and the question was as to whether the Applicant was Financial Creditor , where it was held that Applicant was not Financial Creditor . The above judgment is clearly distinguishable. 18. We have already held in foregoing paragraphs that Respondent was Operational Creditor and the nature of transaction was operational debt , hence, we do not find any substance in submission of the learned Counsel for the Appellant that Application under Section 9 was not maintaina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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