B.S.V. Prakash Kumar, Judicial Member .-

1. It is a Company Petition, the Petitioner filed against the Corporate Debtor u/s 9 of the Insolvency & Bankruptcy Code (hereinafter called as "the Code") on the ground that since the Corporate Debtor defaulted in paying Rs. 26,47,048 against the invoices raised by the Petitioner towards the goods supplied to the Corporate Debtor, the Petitioner filed it to initiate Corporate Insolvency Resolution Process against the Corporate Debtor.

2. The case in brief: The Petitioner is engaged in the business of supplying spare parts and providing repair services to Xiaomi Mobile Phones, since this Corporate approached this Petitioner in the year 2015 and entered into an agreement for supply of the products by the Petitioner, in pursuance thereof, the petitioner supplied goods to the Corporate Debtor from 25.01.2016 till 26.07.2016 and raised invoices against the Corporate Debtor. Soon after supply of goods, as the Corporate Debtor failed to pay the dues of Rs.26,47,048, the Petitioner issued notice on 22.05.2017 under Form-4 stating that in the event fee Petitioner failed to pay the aforesaid amount within ten days, The Petitioner would file petition u/s 9 of the Code. As no payment has come from the corporate debtor, the petitioner filed this case.

3. In reply to the same, the Corporate Debtor counsel has come out with a defence that this Petitioner having given notice u/s 8 of the Code under Form-4 Template given in Insolvency & Bankruptcy (Application to the Adjudicating Authority) Rules, 2016, the Petitioner ought to have attached copies of invoices demanding payment along Form-4, but the petitioner has only given list of details of invoices without producing the copies of the invoices for which claim has been made. Besides this, the Corporate Debtor's Counsel stated that as to Form-4, it was issued on 22.05.2017, whereas in the Form-5, the petitioner has mentioned as Section-8 notice was given on 21.09.2017. These dates are in variation to each other. The Debtor Counsel says that this petition with these inherent inconsistencies shall not be admitted and it has to be rejected u/s 9 (5) (ii) of the Code.

4. On hearing the submissions of either side, it is clear that this petitioner has neither served copies of invoices upon the debtor along with Form-4, nor has filed the copies of invoices with Section-9 Application.

5. Now the point for determination is, whether issuing Section-8 notice without enclosing copies of invoices and then as to non-filing of invoices along with Section-9 Petition will amount to not furnishing of material papers as envisaged under section 9 (2) of the Code or not.

6. Before getting into any further, let us see the templates given as Form-3 and Form-4 to know the difference between two.

Form - 3

(Refer clause (a) of sub-rule (1) of rule -5)

Form -4

(Refer clause (b) of sub-rule (1) of rule -5)

Form of Demand Notice/Invoice demanding payment under the Code

Form of Notice with which Invoice demanding payment is to be attached.

Under this Form it could be either demand notice or invoice demanding payment and it has not been said that invoices shall be attached to the notice.

When it comes to Form-4, the subject caption itself says that it is a "Notice attached to invoice demanding payment", but in this case, it is a Notice in Form-4 template without copies of invoices.

7. So, by ascertaining the difference between two, it could be safely inferred that this Notice given in Form-4 template is defective, which cannot be curable after filing the petition.

8. For this being an admitted fact that copies of invoices not being filed along with Section 9 Petition, now the point for clarification is whether petition is maintainable de hors furnishing copies of invoices, which alone prove supply of goods to the corporate debtor.

9. In Rule-6 of Adjudicating Authority Rules, it has been envisaged that Operational Creditor shall make an application for initiation of CIRP against the Corporate Debtor u/s 9 in Form-5, accompanied with documents and records required as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, this being the guidance to accept the petition, let us see what these Regulations say about the documents to be filed along with the application.

10. In Regulation-7, to prove the existence of debt, the operational creditor shall file either the records available with the information utility or a contract for the supply of goods and services with corporate debtor, an invoice demanding payment for the goods and services supplied to the corporate debtor, an order of a court of a court upon non-payment of a debt or financial statements. For the system of Information utility has not properly set in, the only recourse available is to file material papers along with Section-9 Application as set out in the Regulation.

11. In this case, the document to prove goods supplied is invoices, which the petitioner has not produced before this Bench. That apart, the corporate debtor has not admitted the claim made by the petitioner. In this background, only one conclusion that could be drawn is the petitioner failed to prove the existence of debt. And all we know that the first essential proof required to admit the case is existence of debt, which the petitioner failed to do, therefore the petition shall be dismissed.

12. Accordingly we hereby dismiss this petition with liberty to the petitioner to avail other recourse available under law.