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TMI Blog2020 (10) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... nicated to the Applicant / Appellant by the representative of the first Respondent on 04.03.2020 and accordingly the Applicant / Appellant had produced the copy of the impugned order from the website of National Company Law Tribunal. Therefore, according to the Applicant / Appellant the instant Appeal was filed within the period of limitation, from the date of knowledge of passing the impugned order. The other plea taken on behalf of the Applicant / Appellant is that the 'Corporate Debtor' was never issued with a notice by the Tribunal, in the application filed by the First Respondent / 'Financial Creditor'. 2. Taking note of the fact that the Applicant / Appellant had averred in I.A. No. 1343 of 2020 that the Appellant to know of the impugned order only on 04.03.2020 through the representative of the First Respondent on being communicated etc., this Tribunal by taking a practical, purposeful, meaningful, pragmatic view and result oriented approach condones the delay in question and disposes of the Interlocutory Application. No costs. 3. The Appellant (one of the erstwhile Director of 'Corporate Debtor' - Pine View Portfolio Consultants Pvt. Ltd.) and Member of the Suspended Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the 'Financial Creditor' or 'Corporate Debtor' was present and 'order' was reserved. 8. The Learned Counsel for the Appellant emphatically takes a plea that there is no 'Debt' extended by the First Respondent /'Financial Creditor' to the 'Corporate Debtor' and in fact, there is no privity of contract between them. Apart from that, the 'Debt' alleged to be due and payable was purportedly paid by the 3rd party, who is not even part of the proceeding before the Tribunal. Besides this, there is no 'Contract' with that 'Third Party' and the single document attached with the application in regard to alleged 'Debt' is 'Bank Statement' and that too is of 'Third Party'. 9. Advancing his arguments, the Learned Counsel for the Appellant strenuously contends that the 'Bank Statement' belongs to a third party viz. 'Taj Consultancy' which is not even a party to the proceeding before the Tribunal. According to the Appellant, it is alleged that under instructions from one Rajeev Aggarwal who had financial dealings with the First Respondent / 'Financial Creditor' transferred Rs. 15 Lakhs through RTGS on 30.01.2019 and Rs. 10 Lakhs through its authorised financial services provider viz. 'Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths together with interest @ 24% p.a. from the date of payment. It is averred in Section 7 application of the First Respondent / 'Financial Creditor' that the legal notice dated 05.11.2019 of the First Respondent / 'Financial Creditor' through its Counsel, demanding the sum payable was served to the 'Corporate Debtor', but the 'Corporate Debtor' had not replied to the said notice and after expiry of more than nine months, since the 'Corporate Debtor' had not repaid any amount whatsoever to the First Respondent / 'Financial Creditor', the default was committed by the 'Corporate Debtor' in making the payment of Rs. 29,52,765/-. 15. It is to be pointed out that Section 5(8) of 'I&B' Code speaks of 'financial debt'. In fact, it is defined as a debt along with interest which is disbursed against the consideration for the time value of money and it may include any of the events specified under this provision. In short, the definition is an inclusive one. Also, it cannot be forgotten that a transaction which is not falling under any of those prescribed in the Section can also be termed as 'Financial Debt'. 16. Section 5(7) of the Code deals with 'financial creditor'. Section 5(6) defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation projected by the 1st Respondent / 'Financial Creditor' as per Section 7 of the 'I&B' Code. In this connection, this Tribunal makes a useful reference of the relevant portion of the Rule 38 of 'National Company Law Tribunal Rules', which speaks of 'Service of Notices and Processes' and the same runs as under: - "(1) Any notice or process to be issued by the Tribunal may be served by post [or by courier - Inserted by G.S.R. 1159(E), dated 20.12.2016 (w.e.f. 20.12.2016) or at the e-mail address as provided in the petition or application or in the reply; (2) The notice or process if to be served physically may be served in any one of the following modes as may be directed by the Tribunal- (a) by hand delivery through a process server or respective authorised representative; (b) by registered post or speed post with acknowledgement due [or by courier] or (c) service by the party himself. 1[Explanation - For the purposes of sub-rules (1)(2), the term "courier" means a person or agency which delivers the documents and provides proof of its delivery]. Xxxxxxxxxxxxx (5) A notice or process may also be served on an authorised representative of the applicant or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to follow the ingredients of 'Service of notices and processes' as per Section 38 of the 'NCLT' Rules, 2016. If a notice was not duly served upon the concerned party or he was prevented by any sufficient cause from appearing when the petition / application was called for hearing, the 'Adjudicating Authority' (Tribunal) may pass an order setting aside the ex parte hearing against him, on such terms as it thinks fit. 26. In the instance case, the Appellant has come out with a plea that the 'Corporate Debtor' was never issued with notice by the 'Adjudicating Authority' (Tribunal) and since the 'serving' of advance copy of the application to the 'Corporate Debtor' cannot be construed / deemed to be service of notice in the eye of Law, this Tribunal holds that the 'Adjudicating Authority' / Tribunal while reserving orders in C.P. No. IB-3228 (ND)/2019 had committed error of jurisdiction in reserving orders and passed the impugned judgement without issuing notice to the 'Corporate Debtor' which is clearly unsustainable in the eye of Law. 27. When a plea is taken before this Tribunal that there was no 'Debt' extended by the 'Financial Creditor' to the 'Corporate Debtor' and added furt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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