TaxTMI 
TaxTMI 
2019 (10) TMI 1354
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....nt/operational creditor, i.e. "M/s Premraj Packagings Pvt. Ltd." for initiation of Corporate Insolvency Resolution Process against the Respondent/Corporate Debtor Company "M/s Unnao Distilleries & Breweries Ltd." 2. The Applicant "M/s Premraj Packagings Pvt Ltd." is a company incorporated under the provision of Companies Act, 1956, bearing CIN No. U7495RJ2004PTC0194590 has registered office at Bharatpur, Rajasthan. 3. The Respondent/Corporate Debtor "M/s Unnao Distilleries & Breweries Ltd." is a Limited Company Incorporated on 06.01.2000 under the provision of Companies Act, 1956, bearing CIN No. U15526UP2000PLC025025. It is engaged mainly in the business of supply of pet bottles which is used in the factories for the storage purpose.....
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....pplication to Adjudicating Rules 2016). iv. The counsel for the applicant further stated that the corporate debtor did not reply to the said notice and only transferred Rs. 4 lacs on 08.04.2019 in the account of operational creditor and no further payment is made till date. Hence, the corporate debtor still liable to make payment of Rs. 39,54,878/- towards the outstanding invoices along with interest from the due date to the date of actual payment. v. The issue which is to be decided by this adjudicating Authority is whether the notice send by the operational creditor is in accordance with the provisions of Section 8 of the IB Code, 2016 read with Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority....
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....loses the tracking report of the demand notice sent by the operational creditor which shows that notice was not delivered due to "insufficient address". 9. At this juncture, I would like to refer the arguments advanced by the learned counsel for the applicant, who by filing supplementary affidavit claim that notice was sent as per Rule 5(1) of the Insolvency & Bankruptcy (Application to Adjudicating Authority), Rules 2016 and in support of that he enclosed some of the correspondence made through email to the corporate debtor. 10. But before considering the submissions of the learned counsel for the applicant I would like to refer the provision, under which the notice is required to be sent. Rule 5 of the Insolvency & Bankruptcy (Ap....
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.... ICICI Bank, (2017)205 Corny Cas 57(SC)held: "The scheme of Sec 7 stands in contrast with the scheme under Sec 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in sec 8(1) of the Code. Under Sec 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in Sub Section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing -i.e., before such notice or invoice was received by the corporate debtor. The moment there is existence of such a di....
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.... receipt of information by him from the bank regarding the return of the cheque as unpaid". 13. A mere plain reading of the provision shows that, in this provision like Section 8 of IBC, the word 'deliver the notice' is not mentioned, rather it is mentioned that 'the payee or the holder makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque', where in Section 8 of IBC, the word, 'deliver the notice upon unpaid operational creditor' is mentioned. There is a difference between these two Sections, Section 8 of IBC and Section 138(b) of the N.I. Act regarding the service of notice upon the person concern. 14. As I have already stated in the aforementio....