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Judgment
Per: Justice Rakesh Kumar Jain.
01.09.2022: This appeal is directed against the order dated 27.05.2019 by which an application filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) read with Rule 6 of the Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016 (in short ‘Rules’) by the Appellant has been dismissed on the ground that the application is barred by limitation and also there is a pre-existing dispute.
Shorn of unnecessary details, the Appellant served a notice in terms of Section 8 of the Code on 15.05.2018 upon the Respondent through speed post at its three addresses, which are reproduced as under:
“To, OUM Lamitech Private Limited Having Its Registered Office At: LP-25-B, Pitam Pura, Delhi – 110034 Also At: OUM Lamitech Private Limited Village Halalpur, Jatola Road, Distt. Sonepat, Haryana Also At: OUM Lamitech Private Limited PP-6, Second Floor, Pitampura, Delhi – 110034”
The receipts of three speed post are also reproduced as under: -
“ED81873263IN IVR:6968818753263 SP Krishna Nagar HO <110051> Counter No. 4, 15/05/2018, 19:25 To: OUM Lam Pvt. Ltd. Pin: 131103, Nahri S.O. From: Praveen …. Wt: 750 gms Amt. 76.70 (Cash) Tax: 11.70 <Track on <www.indiapost.gov.in>
ED818742328IN IVR:6968818742328 SP Krishna Nagar HO <110051> Counter No. 4, 15/05/2018, 18:45 To: OUM Lamitech, 25 Pin: 110034, Saraswati Vihar S.O. From: Praveen, Wt: 735 gms Amt. 47.2070 (Cash) Tax: 07.20 <Track on <www.indiapost.gov.in>
ED818753246IN IVR:6968818753246 SP Krishna Nagar HO <110051> Counter No. 4, 15/05/2018, 18:45 To: OUM Lamitech. Pin: 110034, Saraswati Vihar S.O From: Praveen, Wt: 750 gms Amt. 47.20 (Cash) Tax: 7.20 <Track on <www.indiapost.gov.in>
The notice was served as per the postal department as all three notices were delivered upon the Respondent and in this regard, the Appellant has appended evidence in the following manner:
| Booked At | Booked On | Destination Pincode | Tariff | Article Type | Delivered At | Delivered On |
|---|---|---|---|---|---|---|
| KRISHNA NAGAR H.O | 15/05/2018 | 131103 | 76.70 | SPA | Halalpur B.O | 18/05/2018 |
| Date | Time | Office | Event |
|---|---|---|---|
| 18/05/2018 | 11:50:00 | Halalpur B.O | Item delivered |
| 18/05/2018 | 10:27:36 | Nahri S.O | Bag Opened |
| 18/05/2018 | 05:25:14 | NSH ROHTAK | Bag Despatched to SONEPAT RMS |
| 18/05/2018 | 03:30:09 | NSH ROHTAK | Item Received |
| 18/05/2018 | 03:28:21 | NSH ROHTAK | Bag Received |
| 16/05/2018 | 09:00:09 | NEW DELHI RS TMD | Bag Received |
| 16/05/2018 | 04:51:38 | NSH NEW DELHI | Item Bagged for NSH ROHTAK |
| 15/05/2018 | 23:07:33 | NSH NEW DELHI | Bag Received |
| 15/05/2018 | 20:15:15 | KRISHNA NAGAR H.O | Item Bagged for NSH NEW DELHI |
| Booked At | Booked On | Destination Pincode | Tariff | Article Type | Delivered At | Delivered On |
|---|---|---|---|---|---|---|
| KRISHNA NAGAR H.O | 15/05/2018 | 110634 | 47.20 | SPA | RAMESH NAGAR H.O | 17/05/2018 |
| Date | Time | Office | Event |
|---|---|---|---|
| 17/05/2018 | 17:40:09 | RAMESH NAGAR H.O | Item delivered |
| 17/05/2018 | 17:40:09 | RSH NEW DELHI | Bag per person |
| 17/05/2018 | 05:18:03 | NSH NEW DELHI | Bag Despatched to RAMESH NAGAR H.O |
| 17/05/2018 | 05:55:22 | NSH NEW DELHI | Item received to RAMESH NAGAR H.O |
| 16/05/2018 | 23:32:50 | NSH NEW DELHI | Item Received |
| 16/05/2018 | 20:39:57 | NSH NEW DELHI | Bag per person |
| 16/05/2018 | 16:39:05 | Saraswati Vihar S.O | Item Bagged for NSH NEW DELHI |
| 16/05/2018 | 16:39:05 | Saraswati Vihar S.O | Item delivered to Ramesh NAGAR H.O |
| 16/05/2018 | 09:09:15 | Saraswati Vihar S.O | Item Received |
| 16/05/2018 | 09:09:15 | Saraswati Vihar S.O | Bag per person |
| 16/05/2018 | 08:52:02 | Saraswati Vihar S.O | Bag Received |
| 16/05/2018 | 08:52:02 | NSH NEW DELHI | Bag per person to Saraswati Vihar |
| 16/05/2018 | 02:31:29 | NSH NEW DELHI | Item Bagged for Saraswati Vihar S.O |
| 15/05/2018 | 18:47:09 | KRISHNA NAGAR H.O | Item Received |
It is submitted that since the Respondent did not pay the outstanding amount, the Appellant filed the application under Section 9 of the Code in which the following averments were made, which is as under: -
“Part-IV
PARTICULARS OF OPERATIONAL DEBT
| 1. | TOTAL AMOUNT OF DEBT, DETAILS OF TRANSACTIONS ON ACCOUNT OF WHICH DEBT FELL DUE AND THE DATE FROM WHICH SUCH DEBT FELL DUE. | INR 79,91,432.727- [Rupees Seventy Nine Lakhs Ninety One Thousand Four Hundred Thirty Two and Seventy Two Paise Only] Details of transactions and the due date of debt are submitted in the brief facts mentioned herein below: |
| 2. | AMOUNT CLAIMED TO BE IN DEFAULT AND THE DATE ON WHICH THE DEFAULT OCCURRED (ATTACH THE WORKINGS FOR COMPUTATION OF AMOUNT AND DAYS OF DEFAULT IN TABULAR FORM) | INR 79,91,432.727-[Rupees Seventy Nine Lakhs Ninety One Thousand Four Hundred Thirty Two and Seventy Two Paise Only] The Corporate Debtor has defaulted on 25.05.2018 when it has failed to reply to the notice dated 15.05.2018 (enclosed) |
The Respondent did not choose to file reply to the notice dated 15.05.2018, however, reply was filed to the application filed under Section 9 of the Code on 05.09.2018. The Respondent has averred that it had to file a Civil Suit before the Court of District (West), Tis Hazari Court, Delhi on 14.09.2018 for recovery of Rs. 11,41,014.30/- against the Appellant. The Adjudicating Authority recorded in its order that:
“5.7Further it is submitted by the Respondent that the Operational Creditor was liable to issue a statutory notice. However, in the present circumstances, the Operational Creditor has neither issued any statutory notice nor has the Corporate Debtor received any such notice till date
7.2.It is seen that a Civil Suit for recovery filed by the Corporate Debtor against Praveen Jain, the applicant before us, and Milton Industries Limited is also pending for adjudication before the District Judge (West), Tis Hazari, Delhi”
The aforesaid two findings have been recorded firstly about the non-issuance of notice which is mandatory under Section 8 of the Code and secondly about pendency of the suit filed by the Corporate Debtor against the Appellant to show that there was a pre-existing dispute, however, there is no finding recorded as to why the application filed by the Appellant dated 18.07.2018 regarding the amount claim by virtue of default dated 25.05.2018 was time barred. Counsel for the Appellant has, thus, submitted that the findings recorded by the Adjudicating Authority on all the aforesaid three issues are patently against the facts and are illegal.
Counsel for Respondent has submitted that the Written Submissions filed by it may be considered and has relied upon the decision of the Adjudicating Authority.
We have heard Counsel for the parties and perused the record with their able assistance.
In so far as the first issue is concerned, the findings recorded in Para 5.7 of the order of the Adjudicating Authority is patently erroneous on facts because the Appellant has attached evidence to the effect that notice dated 15.05.2018, purported to have been issued under Section 8 of the Code, was duly served upon the Respondent (Company) at its three addresses which is evident from the record of the postal department which has been reproduced by us in the earlier part of this order for a quick reference. The findings recorded in Para 5.7 is, thus, reversed.
In so far as the issue of limitation is concerned, the case set up by the Appellant is that the default had occurred on 25.05.2018 and the application under Section 9 was filed on 18.07.2018 which is evident from the application which is available on record. Therefore, the application was well within the time. The findings of the Adjudicating Authority in this regard is also reversed.
The last issue is about the pre-existing dispute. It is admitted fact that a Civil Suit has been filed on 14.09.2018 much after the service of the notice issued under Section 8 of the Code and also filing of the application under Section 9 of the Code against the present Respondent. Thus, in view thereof, there is hardly any merit in the argument of the Respondent that there was a pre-existing dispute and the finding of the Adjudicating Authority in this regard is also reversed.
No other point has been raised.
Thus, in view of the aforesaid facts and circumstances, the appeal is hereby allowed and the impugned order is set aside. The matter is remanded back to the Adjudicating Authority to proceed further in accordance with law. The parties are directed to appear before the Adjudicating Authority on 16th September, 2022.
The registry is directed to send the copy of this order to the concerned Adjudicating Authority for compliance.