AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (4) TMI 155
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....tion under section 9 of the Insolvency and Bankruptcy Code, 2016 after serving the demand notice under section 8 of the Insolvency and Bankruptcy Code, 2016. The Appellant contends that the demand notice dated 30-07-2018/01-08-2018 under section 8 of the Insolvency and Bankruptcy Code, 2016 was sent by Speed Post, but it was returned with the remark of the Postal Authorities as "not available". The Adjudicating Authority rejected the petition on the ground that service of the demand notice of the Corporate Debtor is not established. The contention of the Operational Creditor that demand notice sent to the Director of the Company is not returned. Hence, demand notice shall be deemed served, given the General Clauses Act, 1987 and section 114 of the Indian Evidence Act, 1872. The Adjudicating Authority further holds that I & B Code, 2016 is a complete Code in itself and provisions of Indian Evidence Act, 1872 and General Clauses Act, 1987 is not applicable unless specifically covered in I & B Code, 2016, and based on these, the petition has been dismissed. The Adjudicating Authority further observed that: '6. It is observed that service/delivery of the notice of demand on the ....
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.... available". The appellant emphasises on the tracking report of the Postal Authorities, which contains the remark that "item on hold as on 21st August 2018 till 13th September 2018". The appellant further contends that the Corporate Debtor, after receiving the demand notice, has filed its reply dated 11th April 2019, before the Adjudicating Authority, Kolkata. In para 3 of its reply, the Corporate Debtor stated that "e-mail was sent on 14th September 2019 and craves leave, referred to the said replies, at the time of the hearing". 4. The appellant raised the argument that the reply of the respondent itself, is a proof of service of notice on the respondent. The respondent in para 6 of the reply, has not specifically denied the service of demand notice. It is further stated that "the alleged claim made by the applicant against Kaygee Shoetech Private Limited, in the purported demand notice, is baseless, false, incorrect and/or denied and disputed in entirety". 5. The appellant emphasized on para 6 of the reply by the corporate debtor, which is as under: "as stated above, the purported demand notice contended false allegations and do not merit any detailed reply".....................
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....f demand notice under issued Section 8 of I & B Code, 2016. 11. The service of demand notice in accordance with the Code is to be assessed on the basis of provisions section 8 & 9 of I & B Code, 2016 along with Adjudicating Authority Rules, 2016. Section 8 & 9 of the Code and the format of demand notice, as prescribed under Adjudicating Authority Rules, 2016 and Rule 38 of the National Company Law Tribunal Rules, 2016 is given below for ready reference: Insolvency and Bankruptcy Code, 2016: Sec8: "(1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub section (1) bring to the notice of the operational creditor- (a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b) the repayment of unpaid operational de....
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....o notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and (e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any. (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if- (a) the application made under sub-section (2) is incomplete; (b) there has been repayment of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending 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 th....
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....(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 under this rule by an operational creditor shall also be filed with an information utility, if any. 6. Application by operational creditor.- (1) An operational creditor, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under section 9 of the Code in Form, 5, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (2) The applicant under sub-rule (1) shall dispatch forthwith, a copy of the application filed with ....