9911796707
TMI Blog2023 (5) TMI 1393X X X X Extracts X X X X X X X X Extracts X X X X ..... er that in spite of service of notice the respondent had not entered appearance. 2. Learned counsel appearing for the present applicant submits that notice of the application under Section 11 and/or the invocation under Section 21 of the 1996 Act had not been served at the proper address of the applicant. 3. It is argued that as per the Share Purchase Agreement between the parties dated April 30, 2021, the current Directors would have no further liability after the takeover date, that is, April 30, 2021 in excess of the amount of Rs. 12,58,79,538/-. In the said Agreement, there was no mention of the present claims being made against the applicant-Company after the takeover. 4. Learned counsel, on such score, places reliance on Clause 4.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said application and notice sought to be served at the same, which resulted in service not being effected on the present applicant. 8. Leaned counsel places reliance on the second paragraph of the reply dated March 14, 2022 given by the present applicant-Company where the principal place of business and corporate office had been indicated. 9. In paragraph no.2, it was mentioned that the legal notice dated February 28, 2022, which was the premise of the invocation of arbitration, was sent to the applicant-Company by the employee of the erstwhile management of the Company through courier on March 9, 2022. Such statement itself, it is argued, indicated that the address of the Company had changed. 10. However, the present respondent (petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other means which provides a record of the attempt to deliver it. 13. In the present case, the respondent herein failed to undertake such reasonable inquiry which would have revealed the change of address of the applicant-Company. The intimation to the Registrar of Companies within the contemplations of Section 12 of the 1996 Act and Rules 25 and 27 of the 2014 Rules is sufficient public notice of such change of address, it is argued. 14. In view of contravention of Section 3(1)(b) of the 1996 Act, the entire invocation and subsequent application under Section 11, it is argued, were vitiated in law. 15. Whereas the invocation under Section 21 took place on September 29, 2022, the change of address had taken place much prior thereto. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observed that in spite of the service of notice, the present applicant (respondent therein) had not entered appearance and therefore, the averments made by the present respondent remained uncontroverted. On such premise, the order of appointment of Arbitrator was passed. A scrutiny of the records of the parent proceeding under Section 11 also reveals that due affidavit-of- service showing good service was kept on record. 20. From the records, it can be seen that only when an attempt was made to communicate the Minutes of the first sitting of the Arbitrator to the present applicant, it was discovered that the applicant was not available at the said address. 21. There is nothing on record to indicate any reason for the present respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made by the present respondent had a wrong address of the applicant-Company. However, such issue can only be raised before the Arbitrator. 26. In the absence of any palpable error apparent on the face of the order under recall, there is no occasion for this Court to sit in judgment over the order of a co-ordinate Bench under Section 11 of the 1996 Act. 27. By the said order, an Arbitrator was duly appointed, who has already assumed charge and held several sittings, of which the present applicant is well aware. 28. In the absence of any ineligibility of the Arbitrator within the contemplation of the 1996 Act being pleaded or proved, there is no reason why the order dated February 16, 2023 passed in AP No.49 of 2023 should be recalled. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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