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TMI Blog2020 (8) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... by appointing Interim Resolution Professional. 2. Being aggrieved by the impugned order dated 20.09.2019 the appellant, ex-Director of Corporate Debtor-M/s Atlas Alloy (India) Pvt Ltd, has preferred the present appeal. 3. The brief facts of the case are that the Corporate Debtor availed various credit facilities from the Financial Creditor/1st Respondent in the shape of Cash Credit Facility, Bills Discounting, Term Loan in the year 2005 and the said facilities were renewed and the limits have been enhanced from time to time by the 1st Respondent as per request of the Corporate Debtor. For availing the credit facilities the Corporate Debtor had executed various documents such as Hypothecation Agreement dated 9.11.2011 to secure the Term Loan. The Corporate Debtor has also executed various other loan and security documents. 4. Since the Corporate Debtor did not maintain the financial discipline, the account of the Corporate Debtor was classified as NPA by the 1st Respondent on 30.09.2017 and recall notice dated 03.10.2017 was issued to the Corporate Debtor and Guarantors under the SARFAESI Act, 2002 and demanded outstanding amount of Rs. 11,25,09,298.94 but the outstanding amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order dated 20.09.2019 may be set aside and the matter may be remanded back to NCLT, Jaipur for adjudication and the operation of the impugned order may be stayed. 14. Reply has been filed on behalf of 1st Respondent. 1st respondent stated that the appellant has failed to establish that there is any infirmity in the impugned order dated 20.9.2019. 1st respondent stated that the appellant has nowhere denies about the default and also has not submitted any documents to establish the absence of a default. 15. 1st respondent stated that the appeal is hopelessly time barred and the same deserves to be rejected at the very outset. 16. 1st respondent stated that they have received the confirmation the from 2nd Respondent that the suspended Directors of the Corporate Debtor, including the appellant were duly served with the copy of the order by way of a letter to the Appellant at the registered address, as available in the records of Ministry of Corporate Affairs, and an email was also sent by the 2nd Respondent on the registered email address of the Corporate Debtor. 1st respondent stated that the 2nd respondent had also sent an email to the statutory auditor of the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving been left with no alternative filed an application under Section 19(2) of I&B Code and the same is pending. 23. 2nd respondent has stated that they have incurred a sum of Rs. 11,98,144/- as CIRP expenses till the date of filing his reply i.e. 24.06.2020. 24. Lastly the 2nd Respondent prayed that the appeal may be dismissed. 25. Learned counsel for the appellant argued that the 1st respondent did not serve the application filed under Section 7 of I&B Code and/or the notice at the correct address of the erstwhile directors of Corporate Debtor. Learned counsel for the appellant further argued that the 1st respondent deliberately made service by way of email to [email protected] which email was being used by the erstwhile employees of the Corporate Debtor. Learned counsel for the appellant argued that the postal receipts of the registered speed-post dated 26.8.2019 and the Tracking Report establishes that the application were even otherwise not served on the respective addresses. Learned counsel for the appellant argued that the Respondent No.1 has concealed the factum of the One Time Settlement (OTS) proposed by the Corporate Debtor before the Adjudicating Authority. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as minutes of the COC Meeting were served to the suspended Directors on the email given on MCA portal as well as on the personal email ID of the suspended Directors. 2nd respondent further argued that the statutory auditors of corporate debtor was first informed about the initiation of CIRP on 23.9.2019 when IRP sent him an email and thereafter reminders have been sent on 18.10.2019, 22.10.2019 and 01.11.2019 and the IRP sought information with regard to books of accounts and other records of the Corporate Debtor. 2nd Respondent further argued that the statutory auditor of corporate debtor replied to the aforesaid email on 04.11.2019 and the statutory auditors sent ITR IV, computation income audit report and has audit report. 2nd respondent argued that the fact of Statutory Auditor being informed of initiation of CIRP in first week of November, 2019 has not been controverted by the Appellants. 2nd Respondent argued that due to non-cooperation of the corporate debtor and its suspended director, the RP filed an application under Section 19(2) of I&B Code before the Adjudicating Authority. 2nd Respondent further argued that in reply to application under Section 19(2) of I&B Code, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asted on the premises of 'Grand Batteries Pvt Ltd' in which the appellant happened to be Director. We also note that Notice under Section 13(2) of SARFEASI Act was served upon the Corporate Debtor and its sister concern, M/s Nihan Batteries Ltd, (Page 86 and 94 of Appeal Paper Book) at the common address. We also note that the appellant was aware of publication dated 26.8.2019 of theft in the registered address of the Corporate Debtor. Thus the argument of the appellant that he was unaware about commencement of Corporate Insolvency Resolution Process of the Corporate Debtor is not credible and has no force. 30. We also note that Corporate Debtor and suspended directors were served by IRP on the email given on MCA portal as well as on the personal email ID of the suspended Directors. We also note that the 2nd respondent sent an email to statutory auditors and thereafter sent reminders on 18.10.2019, 22.10.2019 and 01.11.2019 and the IRP sought information with regard to books of accounts and other records of the Corporate Debtor. We note that that the statutory auditor of corporate debtor replied vide email dated 04.11.2019 and the statutory auditors sent ITR IV, computation income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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