| Authored by R & D Law Chambers LLP
Ravish Bhatt | Advocate, Bar Council of Gujarat (G/504/2008) | Dual-qualified lawyer (India and England & Wales) | ADIT, CIOT, London | SRA (non-practising) Registration No. 492 477 Published: 4 October 2026 | Last reviewed: 4 October 2026 |
| This note states the law under the Insolvency and Bankruptcy Code, 2016, as amended by the Insolvency and Bankruptcy Code (Amendment) Act, 2026 (Act 6 of 2026), whose provisions relevant here came into force on 26 May 2026, and the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. It concerns applications by operational creditors under section 9. Applications by financial creditors under section 7 are not covered. We advise on Indian law only. |
| No. Section 9 runs only from delivery of a demand notice or invoice under section 8, and section 9(5)(ii)(c) requires the Tribunal to reject an application where none was delivered. Delivery does three things at once: it starts the ten days, it closes the window in which a dispute can still come into existence, and it fixes the debt and date of default the application will be tested against. A notice wrongly addressed or unproved fails all three. |
Index of Topics
- Can an operational creditor go straight to the NCLT?
- What delivery of the notice fixes
- Demand notice or invoice: the two routes under rule 5
- Who may sign the notice
- Where and how the notice must be delivered
- The ten days, and what the reply now costs
- The date of default and the threshold
- What changed on 26 May 2026, and what did not
1. Can an operational creditor go straight to the NCLT?
| No. Section 9(1) of the Insolvency and Bankruptcy Code, 2016 permits an application only after ten days from delivery of a demand notice or invoice under section 8(1), and section 9(5)(ii)(c) requires rejection where none was delivered. The Supreme Court called the requirement well settled in Visa Coke v Mesco Kalinga Steel, 2025 INSC 597. |
Section 8(1) provides that an operational creditor may, on the occurrence of a default, deliver a demand notice of the unpaid operational debt, or a copy of an invoice demanding payment, to the corporate debtor in the prescribed form and manner. The word “may” gives a choice between two documents, not a choice whether to send one. Section 9 closes the door three times: sub-section (1) starts the right to apply ten days after delivery, sub-section (3)(a) requires a copy to be filed with the application, and sub-section (5)(ii)(c) directs rejection where it was not delivered.
In Visa Coke Limited v Mesco Kalinga Steel Limited, Civil Appeal No. 357 of 2025, decided on 29 April 2025, the Supreme Court said it is well settled that an operational creditor must send a section 8 notice before initiating section 9 proceedings, and that failure to issue a proper notice can render the petition invalid. Section 7 has no equivalent step.
2. What delivery of the notice fixes
| Three things, on the day of delivery. It starts the ten days after which section 9(1) allows filing. It closes the window for a dispute, because section 8(2)(a) and Mobilox look only at disputes existing before receipt. And it fixes the debt and date of default against which the application will be tested. |
Creditors treat the notice as a formality before the application in Form 5. The Code treats it the other way round. Form 3 directs that the notice be served ten days before filing and appended to the application, Form 5 requires it to be annexed as served, and the Tribunal’s first question under section 9(5) is whether it was delivered.
The cut-off decides contested cases. Section 8(2)(a) lets the debtor answer with a dispute, or a suit or arbitration filed before receipt of the notice. In Mobilox Innovations Private Limited v Kirusa Software Private Limited, (2018) 1 SCC 353, the Supreme Court framed the enquiry as whether a dispute existed before receipt of the demand notice. Timing therefore becomes strategy. A creditor that holds back its notice gives a disagreement time to arise or be put on record; a prompt, properly served notice closes that window on the day of receipt. For the debtor, a complaint about quality, quantity or the account is protected only if it is on record before the notice arrives. What counts as a dispute is a separate question, not developed here.
3. Demand notice or invoice: the two routes under rule 5
| Rule 5(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 offers a demand notice in Form 3, or a copy of an invoice attached with a notice in Form 4. An invoice is not essential where a Form 3 notice rests on other documents proving the debt. |
Form 3 is the fuller route. It calls for the debt and the transactions behind it, the amount and date of default with workings, any security or retention of title, any information utility record, the provision of law or contract under which the debt fell due, and the documents relied on.
In Consolidated Construction Consortium Limited v Hitro Energy Solutions Private Limited, 2022 INSC 150, decided on 4 February 2022, the creditor had paid an advance for goods never supplied and had no invoice to send. The Supreme Court held that a creditor may proceed by demand notice or invoice, so that the absence of an invoice is not fatal where the notice rests on other documents proving the debt.
4. Who may sign the notice
| Any person authorised to act for the operational creditor, including its lawyer. In Macquarie Bank Limited v Shilpi Cable Technologies Limited, (2018) 2 SCC 674, the Supreme Court read section 8 with Forms 3 and 5 and held that a lawyer may issue the demand notice on the creditor’s behalf. |
The Supreme Court, on 15 December 2017, reversed an Appellate Tribunal ruling that an advocate’s notice was not a section 8 notice, reading delivery under section 8 as including delivery by the creditor’s authorised agent and lawyer. Authority is the point, not the profession: Form 3 requires the signatory to state his position with or in relation to the creditor, and Form 5 requires the filing authorisation to be enclosed. A foreign creditor acting through Indian counsel should execute the authorisation before the notice goes out.
5. Where and how the notice must be delivered
| Rule 5(2) permits delivery at the registered office by hand, registered post or speed post with acknowledgement due, or by email to a whole time director, designated partner or key managerial personnel. In Visa Coke a Form 3 notice addressed to three officers by name, at the registered office, was held valid. |
The Tribunal and Appellate Tribunal had rejected the Visa Coke application because no notice was addressed to the company itself. The Supreme Court reversed both. Reading section 8 with rule 5(2), it held that a notice can be addressed and delivered to the corporate debtor through its key managerial personnel, that the subject line and first paragraph showed the demand was made on the company, and that the debtor showed no prejudice. It treated the notice as deemed service and remitted the application for decision on merits.
The decision cures a misaddressed notice; it does not invite one. The safer notice is the one Form 3 describes: addressed to the company at its registered office, sent by a mode rule 5(2) names, with the acknowledgement kept for the application.
6. The ten days, and what the reply now costs
| Within ten days of receipt, section 8(2) allows the debtor to notify a dispute, or a suit or arbitration filed before receipt, or to prove payment by an attested record of electronic transfer or an encashed cheque. Since 26 May 2026, an operational creditor that conceals a notified dispute or payment faces a penalty under section 67C. |
Section 8(2) counts the ten days from receipt; section 9(1) counts them from delivery. After the ten days the creditor files, with the affidavit under section 9(3)(b) that no notice of dispute was given.
Section 67C, inserted by the Insolvency and Bankruptcy Code (Amendment) Act, 2026, allows the Tribunal, on an application by the Board or the Central Government, to impose a penalty of not less than one lakh rupees and up to two crore rupees on an operational creditor that conceals in its application a dispute or full and final payment the debtor had notified. Whatever the debtor says within the ten days must be disclosed.
7. The date of default and the threshold
| Form 3 requires the amount and date of default, with workings. In Visa Coke the Supreme Court held that the trigger for section 9 is a default, not the mere existence of a debt, and that an application which fails to establish the actual date of default is incomplete. |
The Visa Coke debtor argued that the contract had been novated, making the stated date of default wrong. The Court held novation and the date of default to be mixed questions of law and fact for the Tribunal, and remitted them. The date in Form 3 must be the one the contract and the account will support, because the application cannot improve on it.
Section 4 sets the minimum default at one lakh rupees and allows the Central Government to specify up to one crore rupees, which it did by notification S.O. 1205(E) dated 24 March 2020. The figure is the amount in default, not the contract value.
The notice, element by element
| Element | Governing provision | What goes wrong |
| Delivery before filing | Sections 9(1), 9(3)(a) and 9(5)(ii)(c) | No delivery: the Tribunal must reject the application |
| Choice of document | Rule 5(1): Form 3, or invoice with Form 4 | No invoice: proceed by Form 3 on other documents (Hitro, 2022) |
| Signatory | Form 3; Macquarie Bank (2017) | Authority must exist and be stated; a lawyer may sign |
| Addressee and mode | Rule 5(2)(a) and (b); Visa Coke (2025) | Address the company at its registered office; email only to a whole time director, designated partner or key managerial personnel |
| Amount and date of default | Form 3, item 2; Visa Coke (2025) | Without an established date of default the application is incomplete |
| Debtor’s reply within ten days | Sections 8(2), 9(3)(b) and 67C | A notified dispute or payment must be disclosed; concealment is penalised |
| Information utility | Section 215(3) and (4), from 26 May 2026 | Mandatory before filing under section 9 |
8. What changed on 26 May 2026, and what did not
| Section 8 was not amended. The 2026 Act changed section 9 only by substituting the information clause in sub-section (3)(e) and requiring reasons if no order is passed within fourteen days. Section 215(3) now obliges an operational creditor to submit financial information to an information utility before filing. |
The amending Act received assent on 6 April 2026. Its section 5 amended section 9; its section 62 made the information utility filing in section 215(3) mandatory before a section 9 application and inserted section 215(4), under which information the debtor does not answer within the specified period is deemed authenticated. These provisions came into force on 26 May 2026. Rule 5(3) already required a copy of the notice to be filed with an information utility, if any. The demand notice still comes first: the information utility filing adds to section 8 and does not replace it.
Frequently Asked Questions
Can a lawyer send a section 8 demand notice for an operational creditor?
Yes. In Macquarie Bank Limited v Shilpi Cable Technologies Limited, (2018) 2 SCC 674, the Supreme Court held that a lawyer may issue a demand notice under section 8 of the Insolvency and Bankruptcy Code, 2016 on behalf of the operational creditor. Form 3 requires the signatory to be authorised to act for the creditor and to state his position in relation to it.
Does a section 8 demand notice need an invoice attached?
No. Rule 5(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 allows a demand notice in Form 3 or an invoice with a notice in Form 4. In Consolidated Construction Consortium v Hitro Energy Solutions, 2022 INSC 150, the Supreme Court held the absence of an invoice is not fatal where the notice rests on other documents proving the debt.
Can a section 8 demand notice be sent by email?
Yes, to the right people. Rule 5(2)(b) permits email to a whole time director, designated partner or key managerial personnel of the corporate debtor. The alternative under rule 5(2)(a) is delivery at the registered office by hand, registered post or speed post with acknowledgement due. Keep proof of delivery, because the application must annex the notice as served.
Is a demand notice addressed to a director instead of the company valid?
It can be. In Visa Coke v Mesco Kalinga Steel, 2025 INSC 597, a Form 3 notice addressed by name to the debtor’s director, chief financial officer and a manager, delivered at the registered office and demanding payment from the company, was held to be valid deemed service because the debtor showed no prejudice.
Can a dispute raised after the demand notice defeat a section 9 application?
Not one that arises only after the notice is received. Section 8(2)(a) refers to a suit or arbitration filed before receipt, and in Mobilox Innovations v Kirusa Software, (2018) 1 SCC 353, the Supreme Court asked whether a dispute existed before receipt of the demand notice. The date of receipt is the cut-off.
Did the IBC Amendment Act, 2026 change the demand notice requirement?
No. Section 8 was not amended. From 26 May 2026, section 215(3) requires an operational creditor to submit financial information to an information utility before filing under section 9, and section 67C penalises concealing a dispute or payment the debtor notified.
How R & D Law Chambers Works on These Matters
R & D Law Chambers LLP is an Ahmedabad law firm. We advise on Indian law only, for businesses anywhere, wherever a matter has an India connection.
The firm advises operational creditors, including foreign suppliers and service providers, and corporate debtors on demand notices under section 8 of the Insolvency and Bankruptcy Code, 2016, replies within the ten-day period, and applications under section 9 before the National Company Law Tribunal. That work sits within the firm’s insolvency and NCLT practice.
Related services
- Insolvency and Bankruptcy Services: NCLT Representation in Ahmedabad and Across India: applications under sections 7, 9 and 10, replies and appeals.
- Dispute Resolution and Court Representation: commercial recovery where the insolvency route is not available.
| This article is for information only and is not legal advice. It states the position as at 4 October 2026. |