Alloysmin Industries vs Raman Casting Pvt. Ltd

[Arising out of Order dated 17th September, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi, Bench III, in CP-IB- 394/ND/2018.]

IN THE MATTER OF:

Alloysmin Industries (Through its Proprietor Mr. Ashok Kumar Sharma) Registered Office at: KD-205, Pitampura, Delhi -110088.

...Appellant

Vs

Raman Casting Private Limited (Through its Managing Director) Registered Office at: House No.275, Village Dera, South West Delhi, Delhi - 110074.

Also At: Plot No. G1-267-68, 279-80, RIICO Industrial Area, Khuskhera, Bhiwadi, Rajasthan.

...Respondent

Present:

For Appellant: Ms. Divya Aggarwal, Advocate.

For Respondent: None. -2-

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant - 'M/s Alloysmin Industries' filed an application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred

to as 'I&B Code') for initiation of Corporate Insolvency Resolution Process

against Respondent - 'M/s Raman Casting Private Limited'. The Adjudicaing

Authority by impugned order dated 17th September, 2018 rejected the

application under Section 9 on the ground that the demand notice under

Section 8 of the Code was duly sent through courier to the registered office

address but the same was returned to the Applicant with remark "S/A RTO".

2. Learned counsel appearing on behalf of the Appellant submits that the

demand notice under Section 8 was issued to the Respondent in the

Registered Office at House No. 275, Village Dera, South West Delhi, Delhi -

110074, as also at its Industrial Area Office at Plot No. G1-267-68, 279-80,

RIICO Industrial Area, Khuskhera, Bhiwadi, Rajasthan. Though the demand

notice issued under Section 8 in the Registered Office address of 'M/s Raman

Casting Private Limited' was returned with remark "S/A RTO", the demand

notice under Section 8 issued at Industrial Area Office was duly served on the

Corporate Debtor.

Company Appeal (AT) (Insolvency) No. 684 of 2018 -3-

3. Notices were issued on 'M/s Raman Casting Private Limited' both in

the Registered Office at House No. 275, Village Dera, South West Delhi, Delhi

- 110074 and Industrial Area Office at Plot No. G1-267-68, 279-80, RIICO

Industrial Area, Khuskhera, Bhiwadi, Rajasthan. Inspite of the service of

notice on Corporate Debtor on both the aforesaid addresses, nobody appeared

on behalf of the Respondent - Corporate Debtor. On 11th December, 2018

taking into consideration that the Respondent is not appearing, to give one

more opportunity we adjourned the case. Inspite of service of notice on both

the addresses i.e. in the Registered Office and at the Industrial Area Office

and inspite of the fact that the Appellant has brought the order dated 11th

December, 2018 to the notice of the Corporate Debtor, nobody appeared on

behalf of the Respondent.

4. From the end of paragraph 3 of the impugned order dated 17th

September, 2018 passed by the Adjudicating Authority (National Company

Law Tribunal), New Delhi, Bench III, we find that the Adjudicating Authority

noticed that the demand notice was sent by the Appellant to the Corporate

Office of the Respondent, which was duly received by the Respondent. The

corresponding dispatch proofs and tracking report was placed by the

Appellant but inspite of the same the Adjudicating Authority rejected the

application under Section 9 on the ground that notice was not served on the

Registered Office of the Respondent.

Company Appeal (AT) (Insolvency) No. 684 of 2018 -4-

5. Respondent has not disputed that a claim of Appellant that of

Rs.7,67,675/- is outstanding from the Respondent as per the ledger account

maintained by the Appellant. It is also not disputed that inspite of repeated

requests, the Respondent - Corporate Debtor failed to make payment and

thereby defaulted. Apart from demand notice (in Form 3), the Appellant has

also filed the application under Section 9 (in Form 5 at page 29), which shows

that the application is complete. The Corporate Debtor has not taken any

plea that there is an existence of dispute.

6. In view of aforesaid facts we hold that the Adjudicating Authority erred

in rejecting the application under Section 9 on wrong presumption that

demand notice is to be served on the Registered Office of the Corporate Debtor

and not on Corporate Office (Industrial Area Office herein). If the demand

notice under Section 8 (1) is served on Corporate Debtor either on its

Registered Office or its Corporate Office, it should be treated to be valid service

of notice under Section 8 and application under Section 9 on failure of

payment, if filed after 10 days, is maintainable.

7. We accordingly set aside the impugned order dated 17th September,

2018 passed by the Adjudicating Authority (National Company Law Tribunal),

New Delhi, Bench III, in CP-IB-394/ND/2018 and remit the case to

Adjudicating Authority to admit application under Section 9 without going

into other issues in the matter, in view of deemed service on the Corporate

Company Appeal (AT) (Insolvency) No. 684 of 2018 -5-

Debtor. A fresh notice may be issued to the Corporate Debtor to give an

opportunity, in its both aforesaid addresses to enable the Respondent to settle

the claim with the Appellant and enable the Appellant to withdraw its petition.

Otherwise, the application under Section 9 is to be admitted and appropriate

order of moratorium and appointment of Interim Resolution Professional is

required to be passed. The appeal is allowed with aforesaid observations and

directions.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial) NEW DELHI

21st January, 2019

AM

Company Appeal (AT) (Insolvency) No. 684 of 2018