NCLT Mumbai: Plea Under Section 9 IBC Can Only Be Filed After Expiry Of 10 Day Period Mentioned Under Section 8(2) IBC

The National Company Law Tribunal, Mumbai Bench in the case Aypols Polymers Private Limited Vs Suvarna Fibrotech Pvt Ltd, wherein the bench comprising of Judicial Member, Shri Kishore Vemulapalli and the Technical Member, Shri Prabhat Kumar observed while adjudicating a plea filed and has held that a petition under Section 9 of Insolvency and Bankruptcy Code, 2016 can only be filed after expiry of the 10 day period as stated under Section 8 (2) of Insolvency And Bankruptcy Code, 2016.
Facts of the Case:
The Operational Creditor, Aypols Polymers Private Limited alleged that it supplied the Corporate Debtor, Suvarna Fibrotech Pvt Ltd an unsaturated polyester resin and has raised the voice against it. It has been submitted by the Corporate Creditor that it has sent multiple emails dated 27.06.2018, 9.07.2018 and 15.10.2019 to the Corporate Debtor for requesting the payment of the outstanding amount. Thus, the Operational Creditor sent a demand notice on 18.02.2020 and on the very next day the Operational Creditor filed a petition under Section 9 of IBC on 19.02.2020.
The bench observed that it has not been submitted by the Corporate Debtor that the date of default is not being mentioned in Part IV of the petition filed by the Operation Creditor and it is also being referred to as Annexure II. Therefore, it has also been alleged that the index does not specify any document as Annexure II. Hence, complete documents are not submitted by the
Operational Creditor.
NCLT Observations:
It has been observed by the Tribunal bench that the proof of service of Demand Notice was not being annexed to the petition filed and the bench also observed that it was very unclear how was the Demand Notice was being served. Further, it has been noted by the Tribunal that the Corporate Debtor has 10 days to respond to the Demand Notice as mentioned under Section 8(2) of IBC. Further, the Tribunal observed that a petition under Section 9 of IBC can only be filed after expiry of 10 days as mentioned under Section 8(2) of the IBC. Thus, the petition was being filed on the very next day on which the Demand Notice was sent, the petition filed was not in accordance with Section 9(1) of Insolvency And Bankruptcy Code, 2016.
Accordingly, the Tribunal dismissed the petition.