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Judgment
28.04.2025 I.A. No. 2528 of 2025 This is an application praying to take on record the amended memo of the Appeal by deleting the name of Appellant No.1 from the array of parties. Amended memo is taken on record. Let, the memo of appeal be amended accordingly.
I.A. No. 496 of 2025 This is an application praying for condonation of 9 days delay in filing the Appeal. We find sufficient cause has been shown in paragraphs 2(ii), (iii), (iv) and (v) for condonation of 9 days delay. Delay is condoned.
Heard Learned Counsel for the Appellant as well as Mr. Abhishek Anand appearing for the Respondent.
This Appeal have been filed against the order passed by Adjudicating Authority dated 29.11.2024 allowing an application under Section 43 and 66 filed against the Appellant. Adjudicating Authority by the impugned order has allowed the application. Aggrieved by the said order, the appeal has been filed.
Learned Counsel for the Appellant submits that Appellants were not served any notices in the application which was filed by the Liquidator. Notices issued were not served, hence the Adjudicating Authority directed for substituted service and the substituted service was made in a newspaper in Delhi region, whereas in the application itself the address of the Appellant was at Shri Jiwan Nagar, District Sirssa, Haryana.
It is submitted that service by publication cannot be accepted. However, Adjudicating Authority relying on the affidavit of service filed by the Liquidator proceeded to hear the application and passed order on merit. It is submitted that Appellant has also filed an application to recall the order to proceed ex-parte which was rejected on the ground that there was no prayer for condonation of delay and the application was filed beyond 30 days. Application to recall the said order 15(10) remain pending on the date when order was passed.
Sh. Abhishek Anand, Learned Counsel appearing for the respondent submitted that Appellant were aware of the proceeding and they did not appear before the Adjudicating Authority when the matter was heard nor brought any reply.
We have considered submission of Counsel for the parties and perused the record.
In the I.A. No. 1262 of 2024 which was filed by the Liquidator. Following order was passed on 09.04.2024:
“IA-1262/2024
Ld. Proxy Counsel appearing on behalf of the Liquidator has submitted that notices could not be served to the Respondent and therefore seeks permission to publish the notice in two local newspapers in Daily edition. Permission Granted. The Application is directed to take necessary steps for publication and file proof and affidavit of service within two weeks. The Respondents are directed to file reply, if any, within one week after the publication of notice.
List the matter on 08.05.2024.”
In pursuance of the order of the NCLT dated 09.04.2024, publication was made in the newspaper an affidavit of service dated 08.05.2024. In the affidavit of service in paragraph 3 was following:
“3.That, accordingly, the deponent issued notice by way of substituted service upon the Respondents through newspaper publications in Financial Express (English Edition), Jansatta (Hindi Edition), in New Delhi region on 13.04.2024. The details of service are as following:
| Respondent | Service Mode | Service report |
| Mr. Iqbal Singh Member of Suspended Board of Directors of Namdhari Food International Private Limited Sri Jiwan Nagar, District Sirsa, Haryana – 125075 (Respondent No.1) | By newspaper publication on 13.04.2024. | Served on 13.04.2024 |
| Mr. Surjit Singh Member of Suspended Board of Directors of Namdhari Food International Private Limited Sri Jiwan Nagar, District - Sirsa, Haryana – 125075 (Respondent No.2) | By newspaper publication on 13.04.2024 | Served on 13.04.2024” |
When we look into the affidavit of service, it is clear that publication was made in New Delhi region in the newspaper, whereas according to own case of the Liquidator address of the Applicant was Sirssa, State of Haryana, which is reflected from the memo of parties of the application itself.
Admittedly, the order has been passed ex-parte against the appellant and we are satisfied that present is a case where no appropriate service was effected on the Appellant. Hence, the order impugned allowing the application in I.A. No. 1262/2024 cannot be sustained.
In result, we allow the appeal, set aside the order dated 29.11.2024 passed in I.A. No. 1262/2024 is revived before the Adjudicating Authority for fresh consideration. We allow the Appellant three weeks time to file a Reply to the application. The Adjudicating Authority may proceed to hear the application and decide in accordance with law. We make it clear that we are not expressing an opinion on merits of the application it is for the Adjudicating Authority to consider and take appropriate decision accordingly. The Appeal is disposed of.