LexVISA COKE LIMITED versus M/S MESCO KALINGA STEEL LIMITED
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[2025] 4 S.C.R. 1950 : 2025 INSC 597 Visa Coke Limited v. M/s Mesco Kalinga Steel Limited (Civil Appeal No. 357 of 2025) 29 April 2025 [J.B. Pardiwala and R. Mahadevan,* JJ.] Issue for Consideration Issue arose whether the notice served by the appellant-Operational Creditor upon the Key Managerial Personnel-KMP of the respondent-Corporate Debtor at their registered office constitutes valid service of the statutory demand notice u/s.8 of the Insolvency and Bankruptcy Code, 2016, so as to maintain a petition u/s.9 for initiation of CIRP against the respondent-Corporate Debtor. Headnotes† Insolvency and Bankruptcy Code, 2016 – ss.8 and 9 – Insolvency resolution by operational creditor – Demand notice to corporate debtor – Valid service of statutory demand notice – Compliance – Petition u/s.9 by the appellant- Operational Creditor to initiate CIRP against the respondent- Corporate Debtor – Application rejected by the NCLT on the ground that the alleged demand notice was addressed/sent to the Key Managerial Personnel-KMP and no demand notice as required u/s.8(1) sent to the Corporate Debtor and thus, whether service is valid or not, does not arise at all – NCLAT upheld the same – Interference with: Held: s.9 petition can be filed only against the corporate debtor after giving prior notice u/s.8 to the corporate debtor – s.8(1) requires the operational creditor to deliver the notice of demand of unpaid operational debt or a copy of the invoice demanding payment to the corporate debtor at their registered office and the demand notice is required to be in the form and manner as prescribed – Appellant complied with the statutory requirement of sending demand notice in Form 3 to the respondent as provided u/s.8 before filing the s.9 petition – Notice sent by the appellant to the Key Managerial Personnel-KMP of the corporate debtor at the registered office * Author [2025] 4 S.C.R. 1951 Visa Coke Limited v. M/s Mesco Kalinga Steel Limited address in the capacity of their official position, demonstrates that the same was issued to the corporate debtor demanding the operational debt due and payable by them – Not the case of the respondent that no notice was sent by the appellant calling upon the respondent to pay the operational debt – Also during the pendency of s.9 petition, the respondent approached the appellant for settlement, which was not fructified – Substantive right should not be allowed to be defeated merely on technicality – Respondent unable to show any substantial prejudice being caused to them on account of procedural irregularity – Notice issued by the appellant to KMP of the corporate debtor and delivered at their registered office can be construed as a deemed service of demand notice u/s.8 – Approach of the NCLT and the NCLAT rejecting s.9 petition on the technical ground that no notice was sent to the corporate debtor and the notice sent by the appellant to the KMP of the corporate debtor cannot be taken to be a notice issued u/s.8, incorrect and unsustainable in law – Furthermore, the appellant to establish as to what is the actual date of default, failing which, the application filed u/s.9 is incomplete – Issue relating to the date of default by the Corporate Debtor and novation of contract, if any, being a mixed question of law and fact, to be decided by NCLT at the time of final disposal of s.9 petition on merits – Orders passed by the NCLT and NCLAT set aside – Matter remanded to NCLT. [Paras 8.1, 10, 10.1, 14-17] Case Law Cited Union of India v. Ibrahim Uddin & Another [2012] 8 SCR 35 : (2012) 8 SCC 148; GLAS Trust Co. LLC v. Byju Raveendran & Others [2024] 10 SCR 1802 : 2024 SCC OnLine SC 3032; State Bank of India & Ors. v. The Consortium of Murari Lal Jalan & Florian Fritsch & Another, C.A. No(s). 5023-5024/2024; Rajneesh Aggarwal v. Amit J. Bhalla [2001] 1 SCR 54 : (2001) 1 SCC 631; Sardar Amarjit Singh Kalra (Dead) by LRs & Others v. Pramod Gupta (Dead) by LRs & Others [2002] Supp. 5 SCR 350 : (2003) 3 SCC 272; Ramnath Exports (P) Ltd. v. Vinita Mehta (2022) 7 SCC 678 : (2022) 4 SCC (Civ) 150 : 2022 SCC OnLine SC 788 – referred to. K.B. Polychem (India) Ltd. v. Kaygee Shoetech Pvt. Ltd. (2020) ibcla.in 193 NCLAT : Company Appeal (AT) (Insolvency) No. 1010 of 2019; Shubham Jain v. Gagan Ferrotech Ltd. and Another (2021) ibclaw.in 40 : Company Appeal (AT) (Insolvency) No. 1008 of 2019 – referred to. 1952 [2025] 4 S.C.R. Supreme Court Report
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