Petition U/S 9 IBC Can Only Be Filed After Expiry Of 10 Day Period Under Section 8(2) IBC: NCLT Mumbai
The National Company Law Tribunal, Mumbai Bench, comprising of Shri Kishore Vemulapalli (Judicial Member) and Shri Prabhat Kumar (Technical Member), while adjudicating a petition filed in Aypols Polymers Private Limited Vs Suvarna Fibrotech Pvt Ltd has held that Petition under Section 9 of Insolvency and Bankruptcy Code, 2016 can only be filed after expiry of the 10 day period mentioned under Section 8 (2) of IBC.
Aypols Polymers Private Limited (“Operational Creditor”) alleged that it supplied unsaturated polyester resins to Suvarna Fibrotech Pvt Ltd (“Corporate Debtor”) and raised invoices against it. The Operational Creditor submitted that it sent multiple mails dated 27.06.2018, 9.07.2018 and 15.10.2019 to the Corporate Debtor requesting payment of the outstanding amount. On 18.02.2020 the Operational Creditor sent a demand notice and on the very next day (19.02.2020) the Operational Creditor filed a petition under Section 9 of IBC.
On the contrary, the Corporate Debtor submitted that the Operation Creditor has not mentioned the date of default in Part IV of the petition and it is referred to as Annexure II. It was alleged that the index doesn’t specify any document as Annexure II. Hence the Operational Creditor has not submitted the complete documents.
Observations of the Tribunal
The Tribunal observed that the proof of service of Demand Notice was not annexed to the petition and it was unclear how was the Demand Notice served. The Tribunal noted that the Corporate Debtor has 10 days to respond to the Demand Notice under Section 8(2) of IBC. It further observed that a petition under Section 9 of IBC can only be filed after expiry of 10 days provided under Section 8(2). In the present case, since the petition was filed on the very next day on which the Demand Notice was sent, the petition was not in accordance with Section 9(1) of IBC.
With the aforementioned observations, the Tribunal dismissed the petition
Case: Aypols Polymers Private Limited Vs Suvarna Fibrotech Pvt Ltd
Case No. ; CP (IB) No.635/MB-IV/2020
Appearance for the Applicant :Mr. S. Palanikumar, Company Secretary, Learned Authorised Representative.
Counsel for the Respondent :Mr. Viraj Parikh i/b Adv. Agam H Maloo