TaxTMI 
TaxTMI 
2020 (9) TMI 718
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....hed the Operational Creditor company and talked to Manager Sales and Marketing at the registered office of the Operational Creditor for transportation of their consignments throughout India by the Operational Creditor. The Operational Creditor quoted their rates as well as the terms and conditions for the transportation of the goods of the Corporate Debtor. The Corporate Debtor clearly understood and accepted the offered rates as well as the other terms and conditions of the Operational Creditor. Our Company entered into a contract with Servel India Pvt. Ltd. for Logistics for the routes mentioned in the Contract dated 01st July, 2017 and the said Contract, at the instance of Servel India Pvt. Ltd., was renewed/amended from time to time. After the Corporate Debtor accepted the offer of the Operational Creditor through written contract, the Operational Creditor started the business dealings with the Corporate Debtor. In 2017, the officials from the Corporate Debtor Company also visited the Operational Creditor Company at the registered office in order to be ensured about the infrastructure of the Operational Creditor Company. They met the Senior Management persons as well before str....
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....g and mutual. That in total the Corporate Debtor is liable to pay a sum of Rs. 7,94,035/- towards the freight charges to the Operational Creditor. The said amount is payable at Delhi at the registered office of the Operational Creditor. Since, the Corporate Debtor have failed to pay the same inspite of repeated requests and demand notice, they are also liable to pay interest @ 18% per annum on the aforesaid amount. 3. The present application is within the period of limitation as prescribed in law. 4. Pursuant to the Court notice issued to the Corporate Debtor, reply was filed and it was submitted by Corporate Debtor that:- i. The present reply is being filed pursuant the liberty granted by this Tribunal vide order dated 04.12.2019 and to oppose the admission of the petition filed by the alleged operational creditor for appointment of the IRP in terms of the IBC Code, 2016. ii. At the outset, the Corporate Debtor denies the claims made by the alleged Operational Creditor in its application for initiating the Corporate Insolvency Resolution Process under the IBC Code, 2016 save and except specifically admitted herein. iii. It is submitted that present....
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....ective Proof of deliveries are being filed along with the present rejoinder. v. It is submitted that the demand notice dated 19-08-2019 was duly served upon the respondent and its directors. The proof of service is already filed by the Operational Creditor in the present proceedings. It is submitted that all the legal requirements of IBC have been complied by the Operational Creditor and the present petition is liable to allowed as prayed for. 6. We have heard the Learned Counsel appearing for the Operational Creditor as well as Corporate Debtor. In the light of the submissions raised on behalf of the parties, when we have gone through the application, reply and rejoinder to the reply filed on behalf of both the parties then we find that it is admitted fact that the Corporate Debtor has not sent the reply as required under Section 8(2) of the IBC, 2016, according to which, the Corporate Debtor shall within a period of 10 days of the receipt of demand notice or copy of invoices mentioned in sub section (1) bring to the notice of the Operational Creditor, the existence of dispute or record of the pendency of the suit or arbitration proceedings filed before the receipt of ....
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....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, if available;] 2[(d) a copy of any record with information utility confirming that there is no payment of an unpaid operational debt by the corporate debtor, if available; and (e) Any other proof confirming that there is no payment of any unpaid operational debt by the corporate debtor or such other information, as may be prescribed.] (4) An operational creditor initiating a corporate insolvency resolution process under this section may propose a resolution professional to act as an interim resolution profess....
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....ring to the notice of the operational-creditor the existence of disputes or show the documents that the payment of unpaid operational-debt has been made. Section 9 makes it clear that after the expiry of period of ten days, from the date of delivery of the notice or invoice demanding payment, if the Operational Creditor does not receive payment from the Corporate Debtor or notice of the dispute under Section 8(2) of the Code, only in that case the Operational Creditor may file an application for initiation of the CIRP. If we shall read these two provisions together then we find, before initiating a proceeding under Section 9, the operational-creditor is required to fulfil the conditions mentioned under Section 8(1), if he has not sent the demand notice as required under Section 8(1) of the Code, then he cannot invoke the provision under Section 9, rather he can invoke the provision of Section 9 only, when Corporate Debtor fails to raise the existing of disputes or produce the document to show that unpaid operational debt has been paid within ten days of the receipt of the demand notice. Therefore, on the basis of aforesaid provision, we are of the view that Section 8 and 9 cast a d....
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....cation. 12. Accordingly, this petition is admitted. A moratorium in terms of Section 14 of the IBC, 2016 shall come into effect forthwith staying:- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the corporate debt or any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Further: (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-secti....