TMI Blog2017 (11) TMI 1829X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority. Also, when Sections 8 and 9 of the Code clearly specify the delivery of demand notice on the unpaid operational debtor in such form and manner as may be prescribed, it has to be followed in its true spirit. When it is mandatory to deliver the demand notice prior to filing the application, the same cannot be violated. The Tribunal below has not noticed the non-service of the mandatory notice at the registered office, which is a preliminary requirement for presenting the application for adjudication. Section 8 of the Code clearly mandates that the demand notice shall be delivered in such form and manner, as may be prescribed, and Rules 5 and 6 of the Rules mandate that the notice shall be served at the registered office of the corporate debtor. This is a mandatory requirement and it cannot be violated. Admittedly, the documents clearly show that the notice was served at the branch office, but not at the registered office. In the given situation, this Court can very well interfere with the failure of the Tribunal, in exercising its jurisdiction. It cannot be said that it is a factual dispute. The Tribunal below ought to have exercised its power vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post, with acknowledgement due. As per Rule 6 (2), an operational creditor shall dispatch the application with the Adjudicating Authority, by registered post or speed post to the registered office of the corporate debtor in Form 5 under Section 9 of the Code. According to the learned Senior Counsel, in the instant case, the operational creditor has admittedly not sent notice to the registered office, but the Tribunal below, without considering the said fact, admitted the application by the order impugned and, therefore, it is liable to be set aside. 4. Per contra, Mr.M.Velmurugan, learned counsel for the respondent/operational creditor, would submit that the notice has been sent to the city office of the petitioner/corporate debtor and, therefore, there is no infirmity in the order passed by the Tribunal below. He would also submit that the pre-litigation notice was also sent to the petitioner, which was received by them, and, in fact, a reply was also given thereto and, in such circumstances, the petitioner cannot feign ignorance of the proceedings, as they have delib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is held that under Article 227 of the Constitituion of India, the quesiton of facts shall not be interfered with, when the tribunal below has given a clear finding on the same. Further, the learned counsel would argue that the order impugned is passed on merits and there is an effective appeal remedy available to the petitioner and, in such circumstances, this Court has no jurisdiction to interfere with the order passed by the original authority. 6. Learned Senior Counsel appearing for the petitioner would rely on the following judgments : (i) Nazir Ahmad v. King Emperor, 16.03.1936, Privy Council (ii) Rao Shiv Bahadur Singh and Another v. The State of Vindhya Pradesh, AIR 1954 SC 322 (iii) State of Uttar Pradesh v. Singhara Singh and Others AIR 1964 SC 358 (iv) Babu Verghese and Others v. Bar Council of Kerala and Others 1999 (3) SCC 422 (v) Chandra Kishore Jha v. Mahavir Prasad and Others 1999 (8) SCC 266 (vi) Captain Sube Singh and Others v. Lt. Governor of Delhi and Others 2004 (6) SCC 440 (vii) Indian Banks' Association v. Devkala Consultancy Service 2004 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way.... 10. This Court, in C.R.P.PD.MD.Nos.475 and 476 of 2004, referred to above, has also held that when a statue prescribes to do a particular thing in a particular manner, the same shall not be done in any other manner than prescribed under the law. 11. It is clearly held by the Supreme Court in Surya Dev Rai v. Ram Chander Rai, 2003 (6) SCC 675, that this Court can exercise the power under Article 227 when grave injustice is caused; when the Court below fails to exercise the jurisdiction which it does have, such failure occasioning a failure of justice; and the jurisdiction though available is being exercised in a manner, which tantamounts to overstepping the limits of jurisdiction. 12. When a statute prescribes a particular thing to be done in a particular manner, not adhering to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
