2022 (2) TMI 66 - AT - Insolvency and Bankruptcy

Tribunal Upholds Decision on Demand Notice Failure in Insolvency Case

Nitin Singh Proprietor of Shri Shyam Printers Versus Waves Bio-tech Pvt. Ltd.

The Tribunal upheld the Adjudicating Authority's decision, ruling that the Operational Creditor failed to deliver the demand notice as mandated under ... Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - demand notice was not served within time - HELD THAT:- It is very much clear that receipt of demand notice by the CD is a must. In the present case, the demand notice has not received by the CD - There also exists some disputes with respect to poor quality of packing materials supplied by the OC to the CD and the CD has visited the godown for inspection and observed the discrepancies in the inner packing carton and outer packing carton supplied by the OC. CD has even requested to replace the material which has not been done by OC. In view of the aforesaid facts and circumstances the case, there seems that the OC/Appellant wants to build 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. Issues Involved:1. Non-delivery of demand notice under Section 8 of the Insolvency and Bankruptcy Code, 2016.2. Existence of a dispute regarding the quality of goods supplied.3. Compliance with procedural requirements under the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.4. Applicability of the Insolvency and Bankruptcy Code for debt recovery.Detailed Analysis:1. Non-delivery of Demand Notice:The primary issue in the appeal was whether the 'Operational Creditor' (OC) had delivered the demand notice to the 'Corporate Debtor' (CD) as mandated under Section 8 of the Insolvency and Bankruptcy Code, 2016. The Adjudicating Authority found that the demand notice sent via registered post was returned with the remark 'No such person found,' and the email sent was not to the email ID of a whole-time director or key managerial personnel of the CD. The Tribunal held that the OC had not complied with Rule 5(2)(b) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, which necessitates delivery to specific personnel within the CD.2. Existence of a Dispute:The CD raised a dispute regarding the quality of the materials supplied by the OC, claiming a loss of approximately Rs. 10 lakh due to poor quality. The Tribunal noted that the existence of such a dispute, especially one that predates the demand notice, is a valid ground for the CD to contest the initiation of the Corporate Insolvency Resolution Process (CIRP). The Supreme Court in Innoventive Industries Ltd. Vs. ICICI Bank emphasized that the existence of a dispute removes the operational creditor from the purview of the Code.3. Compliance with Procedural Requirements:The Tribunal scrutinized the procedural compliance under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. It found that the OC had not delivered the demand notice in accordance with the prescribed methods, either by registered post or to the appropriate email ID. The Tribunal underscored that the receipt of the demand notice by the CD is crucial for the initiation of CIRP under Section 9 of the Code.4. Applicability of the Code for Debt Recovery:The Tribunal reiterated that the Insolvency and Bankruptcy Code is not a substitute for a debt recovery mechanism. The Supreme Court in Transmission Corporation of Andhra Pradesh Limited Vs. Equipment Conductors and Cables Limited held that the IBC is not intended to be used for chasing payments but for resolving insolvency. The Tribunal observed that the OC appeared to be using the Code to pressure the CD into making payments, which is not the intended use of the IBC.Conclusion:The Tribunal upheld the Adjudicating Authority's order, concluding that the OC had not delivered the demand notice as required under Section 8 of the Code, and there existed a genuine dispute regarding the quality of goods supplied. The appeal was dismissed, affirming that the provisions of the Code cannot be invoked for mere debt recovery, especially when procedural requirements are not met, and there is a pre-existing dispute.