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TMI Blog2022 (4) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Debtor as there was no Agreement/letter which deals with any Consultancy - there are no merit in the submission of the Appellant that a Joint Application is maintainable that the Corporate Debtor hired the services of the 2nd Appellant and that the Appellant is acting on behalf of the 2nd Appellant, specifically in the light of the termination letter issued by the Corporate Debtor, terminating the service of the 1st Appellant, in his capacity as an Employee . It is clear from the provisions of Section 8 and 9 of the Code, that unlike under Section 7, a Notice under Section 8 is to be issued by an Operational Creditor individually and the Petition under Section 9 has to be filed by the Operational Creditor individually and not jointly. Individual Operational Creditor will have to issue their individual claim notice under Section 8 of the Code. Each claim will vary and would be different. The date of notice under Section 8 would also be different and vary on a case to case basis. The notices have to be issued in specific forms filling separately Form 3 and Form 4. Petition under Section 9 in the Form would contain separate individual data - A bare perusal of Form 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r individual claim notice under Section 8 of the I B Code. The claim will vary which will be different. Date of notice under Section 8 of the I B Code in different cases will be different. It will have to be issued in format(s). Separate Form-3 or Form-4 will have to be filled. Petition under Section 9 in the format will contain, separate individual date. 19. As per our view, in the present matter the Demand Notice under Section 8 should have been issued by an Operational Creditors individually and further the application under Section 9 has to be filed by Operational Creditors individually and not jointly. For the aforesaid reasons, we hold that a joint application under Section 9 by one or more Operational Creditor is not maintainable. 2. Submissions on behalf of the Learned Counsel for the Appellant. It is submitted by the Learned Counsel for the First Appellant/the Director of the Second Appellant company which is engaged in the business of Media Management, that initially the Petition under Section 9 of the Code was filed by the First Respondent as a duly authorised representative of the Second Respondent Company; thereafter the Memo of Parties was amended and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted debt above the threshold limit. 3. Submissions on behalf of the Learned Counsel for the Respondent. The Learned Counsel for the Respondent company M/s Aspek Media Pvt Ltd contended that a Joint Application by two or more Operational Creditors under Section 8 and/or 9 of the Code is not maintainable. The Second Appellant is claiming amount for consultancy services which was never rendered by the Respondent Company. The Learned Adjudicating Authority has rightly relied on the Judgement of Uttam Galva Steels Ltd V DF Deutsche Forfait AG and Anr (Company Appeal (AT)(Insolvency) No.39/2017 and rightly concluded that a Joint Application by two or more Creditors under Section 9 is not maintainable. The submissions by the Appellants that they had rendered consultancy services is vehemently denied. It is further submitted that there is no written agreement/contract between the Respondent and the Second Appellant. While working as CEO of the Respondent Company, the First Appellant entered into unauthorised business agreements with clients of the Corporate Debtor Company which caused losses to the Company. On gaining knowledge of the same, the Respondent terminated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rporate Debtor served a Notice of Dispute in reply to the Appellant Notice dated 24.10.2018. 9. The Learned Adjudicating Authority has dismissed the Application on the ground that Section 8 Notice was issued by two Operational Creditors jointly placing reliance on the Judgement of this Tribunal in Uttam Galva Steels (Supra) in which it is observed as follows:- 20. Otherwise also it is not practical for more than one operational creditor to file a joint petition individual Operational Creditors will have to issue their individual claim notice under Section 8 of the I B Code. The claim will vary which will be different. Date of notice under Section 8 of the I B Code in different cases will be different. It will have to be issued in format(s). Separate Form-3 or Form-4 will have to be filled. Petition under Section 9 in the format will contain, separate individual date. 10. From the aforenoted judgement, it is clear that two Operational Creditors cannot file a Joint Application under Section 9 of the Code. The contention of the Learned Counsel for the Appellant that the ratio in J.K. Jute Mill Mazdoor Morcha (Supra) is applicable to the facts of this case is untenable, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (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 by the corporate debtor, (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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