A person to whom a debt has been properly assigned or transferred is also included in the definition of “Financial Creditor” under Section 5(7) of the IBC.
The Corporate Debtor went into CIRP vide the Adjudicating Authority (AA) order dated 20.09.2019 and Mr. Hemant Mehta (Appellant) got appointed as Interim Resolution Professional (IRP).
Claim of the rental lease will be treated as operational debt under Section 5(21) of the code as per the decision given by the Hon’ble NCLAT.
The Adjudicating Authority dismissed the Application and held that it is a case of collusive Application whereby the Corporate Debtor is trying to seek benefits of Moratorium u/s 14 of the IBC and other advantages in accordance with other provisions of IBC 2016.
The issue of existence of a dispute when the application under Section 9 of IBC is filed before the Adjudicating Authority. These actions raise doubt regarding the veracity of the dispute and its pre-existence.
Claims towards rent of leasehold property do not fall within the definition of the operational debt in terms of Section 5(21) of the Insolvency and Bankruptcy Code, 2016.
As per section 8 of IBC an operational creditor, if does not receive amount from corporate debtor, has to deliver a demand notice of unpaid amount along with the copy of invoice demanding payment of the amount involved.
In the absence of specific evidence relating to invoices actually forwarded by the appellant and there being a doubt, the insolvency petition cannot be entertained under section 9 of IBC.
The Hon’ble NCLAT held the validity of the demand notice sent through whatsapp messenger app wherein the blue tick on the text implies the acceptance of the communication.
Demand notice means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred.
The recent judgment of the Apex Court in the case of Safire Technologies (Supra) simply expands this explanation to Section 61 of the IBC and discards the contentions that the time period for the limitation shall start running from the date of knowledge of the order.
There is no specific threshold limit for the NCLT Delhi under the IBC 2016. The IBC provides that a financial creditor, operational creditor, or the corporate debtor itself can initiate the insolvency resolution process with the NCLT.
A debt arising from an advance payment given to a corporate debtor for the supply of goods or services would be deemed an operational debt.
Directing the Appellate Tribunal to reconsider the matter, the apex court said that the NCLAT must have notified the bank (Financial Creditor) before closing the CIRP initiated by the NCLT.
In the present case, debt pertaining to unpaid license fee was fully covered within the meaning of ‘operation debt’ under Section 5(21), and the Adjudicating Authority committed an error in holding that the debt claimed by the Operational Creditor is not an ‘operational debt’
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