- (1.) This is a petition filed by the petitioner claiming to be an 'Operational Creditor' under Section 8 of the Insolvency & Bankruptcy Code, 2016 (IBC, 2016) against the Corporate Debtor in view of a default arising out of non-payment of amounts allegedly owed by the Corporate Debtor in relation to supply of Consumer Premises Equipments like set-up boxes, modems etc.. The supplies, it is claimed by the Operational Creditor were based on three purchase orders the details of which are listed in the application as given hereunder: As per the terms of the Purchase Order, it is claimed by the Operational Creditor, payments were required to be made within 90 days and also open a bank guarantee for 100% of the value of the purchase order was required to be opened by the Corporate Debtor. Based on the Purchase Order as listed above, the Operational Creditor it is claimed had also supplied the goods which had been accepted without demur by the Corporate Debtor and invoices were also raised for the value of goods supplied by the Operational Creditor as against the Corporate Debtor. In discharge of the above amount, it is claimed by the Operational Creditor that a cheque drawn by one NSTPL dated 05.07.2016 was issued, but however the same came to be dishonoured for reasons of insufficiency of funds vide intimation memo dated 11.07.2016 and in relation to the dishonor of cheque it is averred that the Operational Creditor has initiated proceedings under Section 138 of the Negotiable Instruments Act, 1881 as amended and the said proceedings are pending. Despite repeated reminders there yet remains an unpaid amount of Rs. 40,20,500/- and in the circumstances statutory notice under the provisions of Companies Act, 1956 was issued without much avail.
(2.) However, in the meanwhile the provisions of IBC, 2016 being brought into force, notice under Section 8 of IBC, 2016 was issued on the Corporate Debtor addressed to its registered office dated 01.02.2017 claiming the unpaid amount of Rs. 40,20,500/- along with interest of Rs. 19,82,712/- in all aggregating to Rs. 60,03,212/-. Despite the service of notice of demand on 02.02.2017, the Corporate Debtor has failed to pay the amount demanded nor has disputed the existence of debt within the statutory period of ten days and in the circumstances the above petition has been filed for initiating the Corporate Insolvency Resolution Process (CIRP) as contemplated under the provisions of IBC, 2016.
(3.) The above petition came to be listed before this Tribunal on 11.04.2017 and since notice of the petition as required to be given under Rule 6(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 ('AAA Rules,) had not been given, the Operational Creditor was directed to serve notice of the petition as well as file the proof of dispatch and service of the same within a period of 2 weeks from the date of the order and the petition was posted to 24.04.2017. On 24.04.2017 the Corporate Debtor upon service had duly entered its appearance through its counsel and had also filed its objections to the petition and the matter was posted to 25.04.2017. On 25.04.2017, after hearing the matter at considerable length, the Counsel for the Corporate Debtor brought to the notice of this Tribunal the decision rendered by the Hon'ble NCLAT in JK Jute Mills Company Limited v. M/s. Surendra Trading Company. Relying upon the said decision it was contended by the Learned Counsel for the Corporate Debtor that since compliance with the provisions of Section 8 & 9 of IBC, 2016 by an Operational Creditor has been held to be mandatory and in the circumstances as the certificate from the financial institution as contemplated under clause (c) of sub-section 3 of Section 9 has not been produced, prima facie the petition is not maintainable and hence liable to be rejected in pursuance of Section 9(5)(ii) of IBC, 2016.;