Learned Counsel for the petitioner is present. It is represented by Ld. Counsel for the petitioner that in compliance to the directions dated 08.6.2018 passed by this Tribunal, an affidavit under Section 9(3)(b) of IBC, 2016 has been filed vide diary No. 3871 dated 11.6.2018. A reading of the said affidavit is as follows:
“That the Deponent states that no other proceeding is pending, neither Before Arbitration Court nor before any Civil Court regarding the said Dispute between the Applicant/Deponent and Respondent. The Respondent has not filed any case/claim against the petitioner/Applicant nor petitioner/applicant has not received any notice relating to the unpaid operational debt.”
It is pertinent to note that the affidavit has been filed under Section 9(3)(b) and the affidavit which is required to be filed must be in relation to the notice of dispute with regard to receipt or non-receipt of the payments made by the Corporate Debtor, if any, consequent to service of notice of default U/s. 8 of IBC Code, 2016. In the affidavit, thus it is also required to be disclosed categorically as to when the notice of demand/default was dispatched, date of its service and as to the expiry of 10 days period thereafter within which time the notice of dispute is required to be sent by Corporate Debtor has been received or not. Service of notice of demand under Section 8 is a sine qua non and facts in relation to the same are to be brought forth before this Tribunal by way of full and true disclosure as well as the non-receipt of notice of dispute from the Corporate Debtor. The cause of action to the Operational Creditor accrues only upon the service of Section 8 notice under IBC, 2016 and as held by the Hon'ble Supreme Court in Mobilox Innovation (P) Limited v. Kirusa Software (P) Limited. This Tribunal in the matter of OPGS Power Gujarat (P) Limited v. RL Steels & Energy Limited in IB-492(ND)/2017 vide Order dated 03.4.2018 has also brought out the importance of the affidavit to be filed under 9(3)(b) of IBC, 2016. Since the affidavit which has been filed by the petitioner is not in consonance with the provisions of Section 9(3)(b) as it has failed to give fuller particulars, despite time being granted for rectification of defect and which has not been rectified, this petition stands dismissed.