9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (1) TMI 1329 - AT - Insolvency and BankruptcyPrinciples of natural justice - proceeding against the Appellant on ex-parte basis - completeness of Section 9 application filed by the 2nd Respondent - compliance with the threshold limit or not - existence of pre-existing dispute between the parties or not. Whether the Adjudicating Authority was right in proceeding against the Appellant on ex-parte basis? - HELD THAT - The Demand Notice was served on the Corporate Debtor which is evident from proof of delivery and which was not replied by the Corporate Debtor - This Appellate Tribunal also observes that the matter was not disposed ex-parte by the Adjudicating Authority on the first date of hearing itself but after repeated orders finally the matter was disposed as the impugned order 04.08.2021. Hence this Appellate Tribunal do not find any error in the impugned order on this ground. Whether Section 9 application filed by the 2nd Respondent was complete in all respect followed laid down procedures and met the threshold limit? - HELD THAT - From the record available it is noticed that the Demand Notice dated 18.07.2020 was sent to the registered office of the Appellant with claim for unpaid Operational Debt of principal amount of Rs. 1, 44, 63, 630/- along with interest from 16.011.2018 to 14.08.2019 of Rs. 26, 03, 453/- thus total amount claimed of Rs. 1, 70, 67, 083/-. The date of default was mentioned as 16.11.2018. The Demand Notice also attached various documents including purchase order placed by the Corporate Debtor invoice raised by the 2nd Respondent/ Operational Creditors proof of part payment communication between the parties and the working for computation of the default amount. The Demand Notice was clearly delivered as evident from document of Blue Dart. Section 8(2) of the I B Code 2016 stipulate that the Corporate Debtor shall within a period of 10 days on receipt of the Demand Notice bring to the notice of the Operational Creditor existence of dispute or proof of payment made by sending attested copy of record of electronic transfer of unpaid amount or sending an attested copy of record that Operational Creditor has encashed a cheque issued by the Corporate Debtor - In the present case the Demand Notice was issued on 18.07.2020 and no reply was sent to the Corporate Debtor within 10days of receipt of the Demand Notice i.e. from the dated of 20.07.2020 (date of delivery of demand notice) or even later. It is therefore clear that the Rules stipulated under Section 8 Section 9 of the I B Code 2016 were strictly followed by the Adjudicating Authority. The total outstanding debt was Rs. 1, 70, 67, 083/- which is more than minimum threshold of Rs. 1 crore - this Appellate Tribunal has no hesitation in holding that the Adjudicating Authority has not erred on this issue. Whether any dispute was pre-existing which should have been considered by the Adjudicating Authority - HELD THAT - The fact of pre-existing dispute if any are required to be brought to the notice of Operational Creditor within 10 days of the receipt of Demand Notice dated 18.07.2020 which was delivered to the Appellant on 20.07.2020. It is seen that no reply was given to the said Demand Notice and as such no pre-existing dispute was brought to the notice of the Operational Creditor i.e. 1st Respondent herein - Similarly despite attempting to serve the petition filed under Section of I B Code 2016 no one from the Corporate Debtor attended the proceeding before the Adjudicating Authority and as such the Adjudicating Authority was not informed of any pre-existing disputes. The Adjudicating Authority has correctly observed in the impugned order that in view of the fact that the Corporate Debtor failed to raise any dispute - this Appellate Tribunal does not find any error on this issue in the impugned order. Appeal dismissed.
Issues Involved:
(I) Whether the 'Adjudicating Authority' was right in proceeding against the 'Appellant' on an ex-parte basis. (II) Whether the Section 9 application filed by the 2nd Respondent was complete in all respects, followed laid down procedures, and met the threshold limit. (III) Whether any dispute was pre-existing which should have been considered by the 'Adjudicating Authority'. Issue-wise Detailed Analysis: Issue (I): Whether the 'Adjudicating Authority' was right in proceeding against the 'Appellant' on an ex-parte basis. The Tribunal examined the relevant rules under NCLT Rules, 2016, specifically Rule 38 regarding the service of notices and processes and Rule 49 on ex-parte hearing and disposal. The 'Adjudicating Authority' recorded that notices were served but no one appeared for the Corporate Debtor, leading to an ex-parte proceeding. The 'Demand Notice' dated 18.07.2020 was confirmed as delivered by 'Blue Dart' on 20.07.2020. The Tribunal noted that the 'Adjudicating Authority' did not dispose of the matter ex-parte on the first date of hearing but after repeated orders. Thus, the Tribunal found no error in the 'impugned order' on this ground. Issue (II): Whether the Section 9 application filed by the 2nd Respondent was complete in all respects, followed laid down procedures, and met the threshold limit. The Tribunal referenced Sections 8 and 9 of the I & B Code, 2016, which require a 'Demand Notice' to be issued before filing a Section 9 application. The 'Demand Notice' dated 18.07.2020 was sent to the registered office of the 'Appellant' with a claim for unpaid 'Operational Debt' of Rs. 1,70,67,083/-. The 'Demand Notice' was delivered, and no reply was received within the stipulated 10 days. The application was complete, the debt was unpaid, and the threshold limit was met. The Tribunal held that the 'Adjudicating Authority' followed the prescribed procedures and did not err on this issue. Issue (III): Whether any dispute was pre-existing which should have been considered by the 'Adjudicating Authority'. The Tribunal noted that no reply was given to the 'Demand Notice' within 10 days, and no pre-existing dispute was brought to the notice of the 'Operational Creditor'. The 'Corporate Debtor' did not attend the proceedings before the 'Adjudicating Authority', and no pre-existing disputes were informed. The 'Adjudicating Authority' correctly observed that there was no dispute raised by the Corporate Debtor. The Tribunal found no error on this issue in the 'impugned order'. Conclusion: The Tribunal concluded that there was no 'Legal Infirmity' in the 'impugned order'. The appeal was dismissed as it was 'devoid of any merits', and all connected pending 'Interlocutory Applications' were closed.
|
