TaxTMI 
TaxTMI 
2020 (6) TMI 730
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....he Petitioner/ Operational Creditor, Jyoti Strips Private Limited for initiation of Corporate Insolvency Resolution Process against the Respondent/ Corporate Debtor Company JSC Ispat Private Limited. 2. As per averments made in the petition, the parties transacting business and from 2017 onwards goods were supplied to the Corporate Debtor by the Operational Creditor. According to the payment received and the amount, the Operational Creditor used to adjust the amount received against the old outstanding invoice on first in first out basis. However, in 2019, the Corporate Debtor started making smaller tranches of payments and the outstanding amounts piling up. On 07.06.2019, cheque for Rs. 10,00,000/- given by the Corporate Debtor to the O....
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....nder Section 9 of the Insolvency and Bankruptcy Code and before filing the present petition, the operational creditor has sent the demand notice as required under section 8 of IBC, through speed post as well as by email, which is enclosed at Annexure-G. 6. Before considering the submissions of the learned counsel for the applicant, we would like to refer the provision under which the notice is required to be sent. Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016, lays down that provision of how the notice would be delivered U/ s 8 of the IBC. Rule 5 of the Insolvency & Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is quoted below . 5.(1) An operational creditor shall deli....
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.... 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-existin -i.e. be ore such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor goes out of the clutches of the Court. 8. Therefore for the initiation of CIRP U/ s 9 of the IBC by the Operational Creditor, the Operational Creditor is required to deliver the demand notice upon the Corporate Debtor U/s 8 of the IBC. The main object of the inc....
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.... designated partner or key managerial personnel of the corporate debtor, and on the basis of the facts stated in the application, we find, the applicant had sent the demand notice on 23.10.2019 through the speed post, as well as though courier service but both have which returned as "Addressee left without instructions". Also, the applicant has sent the demand notice through electronic mail on 23.10.2019 but the Operational Creditor has nowhere mentioned in the application, whether it is sent on the email id of the whole time director, designated partner or key managerial personnel of the corporate debtor. Therefore, it can be said that the applicant has not delivered notice under Section 8 of Insolvency and Bankruptcy Code, 2016, in accord....