2021 (1) TMI 185

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....e proceed to hear learned counsel for the Appellant in ex-parte. 2. Application of Appellant- Operational Creditor filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for short) seeking initiation of Corporate Insolvency Resolution Process (CIRP) against Respondent- 'Vaishnovi Infratech Ltd.' (Corporate Debtor) came to be rejected by the Adjudicating Authority (National Company Law Tribunal), Hyderabad Bench, Special Bench (Video Conference) in terms of the impugned order dated 9th June, 2020 on the ground that the demand notice as mandated under Section 8(1) of the 'I&B Code' was not served on the Corporate Debtor as the same was returned unserved. Aggrieved thereof, the Appellant- Operational Creditor has filed ....

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....tor can bring such pre-existing dispute to the notice of the Operational Creditor. It is also aimed at providing the Corporate Debtor with an opportunity of clearing the liability in case he does not dispute the claim. It is by now well settled that delivery of demand notice in terms of Section 8(1) of the 'I&B Code' is a sine-quanon for initiation of CIRP at the instance of Operational Creditor who is entitled to file the application under Section 9 of the 'I&B Code' only after complying with the statutory requirements. In the instant case, the Appellant has been able to demonstrate that the Appellant issued the demand notice but the postal article was returned undelivered as the Corporate Debtor refused to accept delivery. Learned counsel....

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....count of the addressee being not available on the given address or the venue of addressee being non-existent or the delivery of notice being frustrated because of some reason other than that attributed to the Corporate Debtor, the fact of notice having been returned unserved would amount to non-delivery of notice but in a case like the present one where it is the Corporate Debtor who refused to accept delivery of notice, the Adjudicating Authority would not be justified in coming to conclusion that notice has not been served on the Corporate Debtor. The only inference available in the given circumstances is that the Corporate Debtor was aware of the consequences and it deliberately refused to acknowledge the notice. The fault lies on the pa....