Erstwhile Demand Notice issue u/s 8 of IBC cannot be treated as a valid Demand Notice for filing fresh petition u/s 9 where earlier petition was dismissed as withdrawn and the date of default and amount are also different – Willis Lease Finance Corporation v. SpiceJet Ltd. – NCLT New Delhi Bench Court-V
NCLT New Delhi Bench Court-V held that
(i) On bare perusal of Section 5 (21) of IBC, it is clear that ‘Operational Debt’ is a claim in respect of provision of goods or services which should be based on a contract duly entered between the Corporate Debtor and the Operational Creditor. Moreover, it is settled law that an Operational Creditor is a person to whom an operational debt is owed.
(ii) Under definitions in Section 5(20) “operational creditor means a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred”.
(iii) Section 8 (1) of IBC provides that an Operational Creditor is required to deliver a demand notice for unpaid operational debt and the same is sine qua non for filing and maintaining petition under Section 9 of the IBC. However, in the instant case WLFC had issued a Demand Notice pursuant to which a petition was filed and it was “dismissed as withdrawn”. In the instant case, no fresh Demand Notice was issued by WLFC to SpiceJet, and WLFC in the present Petition is relying on its erstwhile Demand Notice and the demand notice cannot be treated as a valid Demand notice for the alleged debt amount.
