TaxTMI 
TaxTMI 
2019 (9) TMI 417
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....016 (hereinafter referred to as 'I&B Code') only after complying with the relevant provisions of the I&B Code. Appellant was directed to serve notice on the Respondent and upon its failure to deliver the same to Respondent, the National Company Law Tribunal, Bengaluru Bench (hereinafter referred to as the 'Adjudicating Authority') issued notice to Respondent - Corporate Debtor, which was returned with endorsement "Left". Substituted service through publication in English and Kannada Newspapers directed by the Adjudicating Authority does not appear to have been carried out by the Appellant on the score that notice sent through Registered Address of Respondent was deemed to have been served. Consequently, the matter was heard in ex-parte. On consideration of the material on record, the Adjudicating Authority passed the impugned order dated 23rd January, 2019 by virtue whereof the application came to be rejected on the ground that the Appellant had failed to prove the claim which was also prima facie barred by limitation. Aggrieved thereof the Appellant has filed the instant appeal assailing the impugned order as being legally infirm and unsustainable. 2. In these appeal proceeding....
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....ed in this appeal, may briefly be summarized as under:- (i) That the operational debt was time barred. (ii) That there was no proof of purchase order/ contract between the parties to substantiate the services provided. (iii) That service of Respondent was not effected through substituted service as directed by the Adjudicating Authority. 5. We have gone through the record and heard learned counsel for Appellant in ex-parte. From perusal of record it comes to fore that the petition for winding up filed by the Appellant bearing CP No.223/16 before Hon'ble High Court of Karnataka sought a direction to wind up the Respondent Company in terms of provisions of Companies Act, 1956 which came to be transferred to the National Company Law Tribunal, Bengaluru Bench which registered and renumbered the petition as TP No.83/2017 and directed the Appellant to comply with the provisions of law under I&B Code applicable to initiation of Corporate Insolvency Resolution Process at the instance of an Operational Creditor. It appears that the Appellant was directed to issue notice to the Respondent after collecting the same from the Registry which could not be delivered e....
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....f Section 8(1) of the I&B Code upon the Respondent - Corporate Debtor but also for failure on its part to substantiate the claim which was also held to be prima facia barred by the law of limitation. It is queer that the Adjudicating Authority proceeded to pronounce upon the merits of the claim and its enforceability at the very threshold stage when no notice of dispute was received from the Corporate Debtor in response to the Demand Notice within the prescribed time. Admittedly, notice of demand was not served upon the Respondent and in such situation demand notice of claim of Appellant filed in Form 5 forming Annexure A/10 at page 91 of the paper book was not responded to by the Respondent. Thus, dispute regarding the claim of Appellant being payable or not payable in law or in fact as also factum of a pre-existing dispute was not raised before the Adjudicating Authority. It was therefore not prudent on the part of the Adjudicating Authority to pronounce upon the merits of the claim. If the notice of demand under Section 8(1) of the I&B Code was not served upon the Corporate Debtor or any of its Directors and existence of Corporate Debtor itself was in the region of doubt as emer....
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.... records that are required under the said form. Under Rule 6(2), the applicant is to dispatch by registered post or speed post, a copy of the application to the registered office of the corporate debtor. Under Section 9(3), along with the application, the statutory requirement is to furnish a copy of the invoice or demand notice, an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt and a copy of the certificate from the financial institution maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor. Apart from this information, the other information required under Form 5 is also to be given. Once this is done, the adjudicating authority may either admit the application or reject it. If the application made under sub-section (2) is incomplete, the adjudicating authority, under the proviso to sub-section (5), may give a notice to the applicant to rectify defects within 7 days of the receipt of the notice from the adjudicating authority to make the application complete. Once this is done, and the adjudicating authority finds ....
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...., inter-alia, Sections 8 & 9 of the I&B Code came into force on 1st December, 2016. Remedy provided to an Operational Creditor, therefore, was not available before the date of enforcement of the aforesaid provisions and Corporate Insolvency Resolution Process in the instant case could be triggered only after 1st December, 2016. Viewed in that context the application for triggering of Corporate Insolvency Resolution Process under Section 9 of I&B Code could not be held to be hit by law of limitation notwithstanding the fact that the instant case seeking winding up as one of the reliefs before the Hon'ble High Court stood transferred to the Adjudicating Authority which directed the Appellant to comply with the legal provisions under I&B Code for triggering of Corporate Insolvency Resolution Process. We are therefore of the considered view that the application filed in Form 5 in compliance to the order of Adjudicating Authority seeking initiation of Corporate Insolvency Resolution Process under Section 9 of I&B Code was not hit by limitation but the application was premature as the demand notice stated to have been sent on 11.10.2017 could not be served upon the Respondent and was rec....