Storm Export Private Limited Vs. M/s Arsh Associates Private Limited – NCLT New Delhi Bench Court-V
April 27, 2021
The Adjudicating Authority observed that the Petitioner has not mentioned the form number of Demand Notice but the content and format of notice show that the said demand notice was sent in Form-3. The Rule 5 of the AAA Rules, 2016 prescribed the procedure for sending the demand notice. The similar was discussed by the Hon'ble NCLAT Neeraj Jain Director of M/s Flipkart India Pvt. Ltd. Vs. Cloudwalker Streaming Technologies Pvt. Ltd. reported at [2020] ibclaw.in 221 NCLAT decided on 24.02.2020. The Adjudicating Authority held in this case, as part IV of the application, the claim of the applicant is based upon the invoices but the applicant had sent the demand notice in Form-3 and not in Form-4. Therefore, in view of the decision referred above, the demand notice is not in terms of Rule 5 of the AAA Rules, 2016 and so the demand notice sent by the Operational Creditor is defective one and it shall not be treated a valid compliance of delivery of Demand Notice, in terms of Section 8(1) of IBC read with Rule of the AAA Rules, 2016. In view of Section 9 of IBC, an application u/s 9 of IBC shall be filed only after the expiry of the period of ten days from the delivery of the demand. Since it shall not be as a valid compliance of delivery of Demand Notice, in terms of Section 8(1) IBC read with Rule 5(1)(b) of the AAA Rules, 2016. Therefore, in view of Section 9(5)(ii)(a) of IBC, the present application is not complete, hence liable to be dismissed on this ground alone. Accordingly. the present Petition is dismissed. However, the petitioner is at liberty to file a fresh application after delivery of demand notice upon the corporate debtor in accordance with the provision of law.(p10-13)