Failure to serve Demand Notice under Section 8 of IBC is not a mere technical or curable defect but a mandatory precondition for filing Application under Section 9 of the Code for initiating CIRP against Corporate Debtor – Quess Corp Ltd. Vs. Wardwiz (India) Solutions Pvt. Ltd. – NCLT Mumbai Bench
Hon’ble NCLT Mumbai held that:
(i) Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 mandates that the statutory Demand Notice must be served on the Corporate Debtor at its registered office by hand or RPAD or Speed Post. In this case, it is seen that the Demand Notice was not sent to the registered address of the Corporate Debtor as per the Master Data of the Corporate Debtor available on the MCA website.
(ii) In this connection, it would not be out of place to refer to the judgment of Hon’ble NCLAT in the matter of Shailendra Sharma Vs. Ercon Composites (2021) ibclaw.in 14 NCLAT wherein it has been held that the service of Demand Notice to the corporate debtor as per Section 8 is a mandatory requirement.
(iii) Thus, it is settled that failure to serve the Demand Notice under Section 8 of the Code is not a mere technical or curable defect but a mandatory precondition for filing Application under Section 9 of the Code for initiating CIRP against the Corporate Debtor.