2019 (1) TMI 1907

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....Section 9 of the Insolvency and Bankruptcy Code, 2016 (for short, to be referred hereinafter as the Code) in form No. 5 as prescribed under Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (for brevity, the Rules), for initiating the corporate insolvency resolution process against the respondent-corporate debtor-SRS Real Infrastructure Limited. The contents of the application are supported by the affidavit of Mr. Dharmender Sharma, the proprietor of the petitioner-operational creditor concern. 2. The respondent-corporate debtor was incorporated on 26.06.1990 under the Companies Act, 1956 with authorised share capital of Rs. 65 crores and paid up share capital Rs.40,20,32,000/-. The registered....

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....e Demand Notice dated 19.04.2018. The demand notice was sent by electronic mode i.e. e-mail to various persons connected with the respondent-corporate debtor company, out of which some are stated to be key managerial persons. This aspect will be deliberated later on. 6. It is further stated that there was a meeting between the operational creditor and the respondent on 01.02.2018 and the parties agreed to settle the debt at Rs. 2,60,000/- and a Memorandum of Settlement was signed, copy of which is at Annexure-VI. As per clause 1 of the Memorandum of Settlement, the aforesaid amount was agreed by the respondent to be paid to the petitioner. 7. It is further averred that the corporate debtor made part payment of Rs.60,000/- in the accou....

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....port at page 20 of this affidavit. The demand notice was delivered on 10.08.2018. A copy of the notice was also sent at the e-mail id and the copy of the same has also been annexed with the aforesaid affidavit of service. The respondent-corporate debtor was declared duly served when the matter was listed on 23.08.2018 but there was no representation from the respondent. 11. We have heard the learned counsel for the petitioner and perused the record carefully. 12. The first issue for discussion is whether demand notice was served in accordance with the requirement of Section 5(1) of the Rules. The demand notice was sent by electronic mode which is one of the permissible modes of service. Sub-rule (2) of Rule 5 of the Rules reads as und....

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....ed on 15.05.2018 i.e. much after the expiry of 10 days period as required under Section 9 of the Code. The learned counsel for the petitioner referred to the affidavit of the proprietor of the operational creditor in which it is stated that no dispute of unpaid operational debt has been received from the corporate debtor in order to comply with the requirement of Section 9(3)(b) of the Code. The petitioner has also filed the bank statement issued by Axis Bank where the petitioner is maintaining account and the credits were being received from the corporate debtor, though certificate in terms of Section 9(3)(c) of the Code has not been filed but we find that the same being not mandatory and the statement of accounts filed by the petitioner w....