TaxTMI 
TaxTMI 
2022 (2) TMI 66
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....nt of Rs. 1,31,471/- since 30.12.2018. b. The Appellant was providing 'printing and packaging material' to the 'Corporate Debtor' (CD)/Respondent. The OC/Appellant issued a 'notice' dated 08.06.2019 under Section 8 of the Code. Email served as per the 'master data' of the CD and the same was not bounced. c. The CD raised a notice of dispute on 25.06.2019. The 'dispute' is with respect to 'quality of material'. d. The CD has further raised the issue of loss of Rs. 10 lakh approx. due to 'poor quality of goods' supplied by the OC. The 'Adjudicating Authority' on 12.03.2020 has dismissed the petition of Appellant/OC on the ground of 'none delivery of demand notice' etc. 3. A look at the 'impugned order' dated 12.03.2020 (appearing at page 30-37 of the Appeal paper book) it appears that the Adjudicating Authority with a detailed order has dismissed the petition. For a brevity and clarity, para 9, 10, 11 &12 is depicted below:- "Para 9. It is settled principal of law that there is a difference between the procedure for initiation of CIRP by the FCs U/s 7 of the Code and the OC u/s 9 of the Code. So far as the FC is concerned, as per Section 7 of th....
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.... post which was returned as "no such person found", so Rules 5 (2) (a) has not been complied with. As far as Rule 5(2)(b) is concerned, the applicant has sent the demand notice through electronic mail but the CD has nowhere mention in the application, whether it is sent on the email id of the whole time director, designated partner or key managerial personnel of the CD. Therefore, it can be said that the Applicant has not delivered notice under Section 8 of the Code, in accordance with the provisions of the Rule 5(2)(b) of the Insolvency and bankruptcy (Application to Adjudicating Authority )Rules 2016. 12.So, Under such circumstances, in our opinion, the applicant has not complied the provision contained under Rule 5 (Application to Adjudicating Authority) Rules 2016., therefore, this Adjudicating Authority is of the considered view that the Applicant has not delivered the demand notice as required u/s 8 of the Code, which is the mandatory provisions of law and so on this ground in the absence of delivery of demand notice as required u/s 8 of the code, the present CP No. (IB) 2827/ND/2019 filed by the Applicant/OC is not complete and not maintainable and liable to be dism....
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....he present appeal is liable to be dismissed on the same ground. c. The CD/Respondent has submitted that the order passed by the Adjudicating Authority is a reasoned order. It has emphatically stated that the Appellant/OC has the updated and correct correspondence information of the Respondent with them yet the same has not been used due to ulterior motives and the Appellant is creating a 'concocted story' to ignore the prescribed provisions of law by misrepresentation and wrong information. 8. We have gone through the submissions made by the Ld. counsel for the parties, pleadings available on record and our finding are as under: a. The submissions made by the Appellant and the Respondent reflects one thing categorically that the 'Demand Notice' has not been received by the Respondent/CD. b. It also seems very clear that the Appellant/OC has not used regular email and address in the 'Demand Notice'. Although, it was regular supplier in 2018. c. There is an issue of poor quality complain in respect of packing materials supplied by the Appellant/OC and the Appellant has not disputed the same only they have mentioned that this letter has been issu....
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.... (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;] (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 professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the appl....
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....nnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any." f. From the above, it is very much clear that receipt of demand notice by the CD is a must. In the present case, the demand notice has not received by the CD. g. There also exists some disputes with respect to poor quality of packing materials supplied by the OC to the CD and the CD has visited the godown for inspection and observed the discrepancies in the inner packing carton and outer packing carton supplied by the OC. CD has even requested to replace the material which has not been done by OC. h. The Hon'ble Supreme Court has also held in Mobilox Innovations Private Limited Versus Kirusa Software Private Limited in Civil Appeal No. 9405 of 2017 at para 29 as under: "It is, thus, clear that so far as an operational creditor is concerned, a demand notice of an unpaid operational debt or copy of an invoice demanding payment of the amount involved must be delivered in the prescribed form." i. In view of the aforesaid facts and circumstances the case, t....
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....n's Lab (P) Ltd. for marketing of same all over the country. had very kindly assured us to supply and deliver the good quality of the packing material as per requirement and approved sample , it was mutually agreed upon that the payment towards the supply and delivery of the packing material, as per our requirement and approved sample . will be made by you at the Godown of our above buxiness associates - M/s D.R.John's Lab (P) Ltd. on behalf of our company , and iso payment towards to me, will be arranged to be made by us to your company either through our business associates - M/s D. John's Lab (P) Ltd. on behalf of our company or paid by us to your company after checking up the quality of the packing material Le. Inner packing Carton and outer packing carton as per standardized specification and sample approved by us on subject . We highly regret for the very poor and sub-standard quality of the packing material - inner packing carton and outer packing carton supplied by you to our above business associates - M/s D.RJohn's Lab (P) Ltd. different branded medicinal ....