AI Structured Summary
Not yet generated for this judgment
Judgment
(Hybrid Mode)
This appeal is preferred by an Operational Creditor (OC) whose petition under Section 9 IBC was dismissed on the first date of posting before the Adjudicating Authority on 29.07.2025.
According to the appellant, vide two invoices dated 05.07.2022 and another invoice dated 16.07.2022, he has sold silver bullion worth around Rs. 1.27 Crores. The necessary GST component has also been disclosed in the invoices. Since the respondent has not paid the invoice amount, the appellant had issued the statutory notice under Section 8, but it is stated to have been refused by the respondent. Along with the petition, the appellant did not file its GST returns.
It is backdrop of the same that the Adjudicating Authority had passed following order:
“Heard the Ld. Sr. Counsel for the Applicant. The applicant is stated to be a sole proprietor having registered office at Uttar Pradesh but no documents have been produced as to whether the applicant deals with the items of goods supplied (Silver and ornaments) has been furnished. Further from the tax invoices it is observed that they don't have any delivery note, terms of payment and date, nor the despatch details and acceptance of delivery, invoices are merely signed by applicant. It is observed from the documents submitted that the Demand Notice issued to the respondent has not been received as the it is mentioned in the tracking report that the item was returned as no such person in the address on 23.11.2024 and on 22.11.2024 as item redirected to Rajkot Bedipara SO for insufficient address. The applicant has only produced the email ID as per website address in MCA on which it is served but the email is not responded. The applicant is not able to produce the NeSL certificate as the same has not been authenticated by NeSL for lack of proof of debt, default and last acknowledgment was not uploaded which are not available with the applicant. The applicant admitted by email dated July 4, 2025 that the transactions were verbal in nature and no purchase delivery/acknowledgment order is available.
There are certain WhatsApp up with certain number (xerox copies) with certain conversations and this is not a proof of having demanded the due amount from the respondent CD and cannot be considered as proof of delivering the demand due. There are no tax invoices and proof submitted even of delivery of the consignment. From the records submitted, it is observed the same has not been complied, while the Ld Senior Counsel insisted on issue of notice. We observe from documents and submissions that this application is filed without relevant documents and proof of serving notice on the applicant.
In view of the above, we dismiss the application.”
Learned counsel for the appellant submitted that to prove he has actually paid the GST, even though he had not produced any GST related papers before the Adjudicating Authority, the same have now been filed vide the IA No. 2343 of 2026.
Appellant added that, if the Adjudicating Authorityhad required the same, he would have produced them before it. Secondly, IBC only required an OC to issue statutory notice under Section 8 and if the CD refuses to receive it, such refusal cannot be held against the creditor. Further, the appellant has taken notice to the last known address of the respondent. The learned counsel for the appellant claims that the MCA portal continues to disclose that address, and the appellant has tried to serve notice on the respondent as the present address of the respondent.
Notice was attempted to be served on the respondent by the regular process.Since servicecould not be served, this Tribunal directed substituted service throughpaper publication,which was carried out. Respondent has been set ex-parte.
We have perused the papers and find that there is considerable merit in the submissions of the appellant. After all, if the Adjudicating Authority required clarification on certain facts, it would have been appropriate for it to give the appellant an opportunity to explain the same. Indeed, even if it requires some documentary evidence it could have required the appellant to produce.
To conclude, we allow this petition and remand the matter back to the Adjudicating Authority, who may, after affording an opportunity to the appellant to establish its prima facie case and to proceed with the same in accordance with the law.