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2021 (5) TMI 23 - AT - Insolvency and BankruptcyMaintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and Default - time limitation - Service of notice - hearing not attended - HELD THAT:- In the instant case, the ‘Appellant’ had come out with a categorical assertion that the notice was served upon the Respondent on 03.02.2020 and later 08.01.2021 and affidavit of service to that effect was filed before th Adjudicating Authority. When that be the fact situation, when the Respondent had failed to appear before the Adjudicating Authority then, it is duty bound to record the absence/ there being no representation of the Respondent, to hold that ‘service was held sufficient’ and to proceed further, as per Rule 49 of the NCLT Rule, 201₹ 6 under the caption ‘Ex parte hearing and disposal’. Time Limitation - HELD THAT:- In the present case the debt fell due on 01.02.2017 being the date of last invoice raised by the ‘Appellant/Operational Creditor. The ‘Application’ was filed before the Adjudicating Authority in the year 2019 which is well within the period of Limitation. In reality, the Adjudicating Authority had committed an error in making an observation that the ‘Application’ suffered from ‘ Delay and Latches’ and the same is clearly unsustainable in the eye of Law, in the considered opinion of this ‘Tribunal’. This ‘Tribunal’ taking note of the fact that the Director of the Respondent through email on 15.11.2017 had assured the ‘Appellant’ that the Respondent would making the payment towards the dues on monthly instalment basis (since the Respondent was passing through financial crisis) and further only partly settled the dues till February, 2018, and keeping in mind of the vital fact that the court notice was served upon the Respondent on 03.02.2020 and subsequently on 08.01.2021 - this Tribunal comes to an inevitable conclusion that the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench) had committed an error in issuing slew of directions to the ‘Registrar of Companies’, Bengaluru to examine whether the corporate Debtor had complied with the statutory requirement and to take appropriate action etc., and suffice it for this ‘Tribunal’ to make a relevant observation in the present ‘Appeal’ that such directions issued by the Adjudicating Authority cannot be countenanced in the eye of Law. Appeal allowed.
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