Brij Associates vs Associated Lighting Pvt. Ltd

Brij Associates ...Appellant

Vs

Associated Lighting Pvt. Ltd. ....Respondent

Present:

For Appellant: Mr. Anurag Bhatt, Advocate

For Respondent:

ORDER

02.11.2018 This appeal has been preferred by Appellant- Brij Associates

('Corporate Debtor') against order dated 29th May, 2018 passed by the

Adjudicating Authority (National Company Law Tribunal), Court-III, New Delhi

whereby the application preferred by Appellant under Section 9 of Insolvency &

Bankruptcy Code, 2016 (I & B Code) has been rejected on the ground(s) that the

details of service of notice of default under Section 8(i) and the date of actual

service of the same as also the date when the period of 10 days expired have not

been stated.

Learned Counsel appearing on behalf of the Appellant referred to

application under Section 9 (in Form 5 at page -211) to show that receipts and

other details of date of delivery of the demand notice were enclosed.

Notice was issued on Respondent who appeared. When the aforesaid fact

was brought to the notice of the learned Counsel, we allowed the parties to settle

Company Appeal(AT)(Ins) No. 401 of 2018 Page 1 of 3 the matter. However, the parties having failed to settle the claim, we decided to

hear the case on merit.

From the impugned order, we find that the Adjudicating Authority has

referred non-compliance of Section 9(3)(b) to suggest that the affidavit should have

been filed by the Appellant. However, we find that such finding is contrary to the

provisions of Law and the Regulation as also contrary statement made in form-5

and the enclosure attached thereto. In part-IV of form-5 while giving details of

transaction on account of debt fell due and other details, the Appellant has

mentioned that the 'Operational Creditor' has last received payment on

28.04.2015 from the 'Corporate Debtor' under Section 8(i) of I & B Code. It is

stated that no response to the demand notice has been received by the

'Operational Creditor'. On 08.05.2013 i.e. much more than 10 days from the

issuance of demand notice (dated 06.03.2018) Appellant also enclosed a copy of

Service Report of Indian Post Department along with Form-5 which has also been

enclosed in this appeal. These facts have not been disputed by the Respondent on

its appearance. It is in this background, we had given one more opportunity to

the Respondent to settle the claim but it failed avail the opportunity.

As the impugned order dated 29th May, 2018 passed by the Adjudicating

Authority (National Company Law Tribunal), Court-III, New Delhi being contrary

to the record, we have no other option but to set aside the said order. Impugned

order dated 29th May, 2018 is accordingly set aside. The case is remitted to the

Adjudicating Authority to consider the application preferred by Appellant for

admission and admit the same if it is complete. One opportunity may be given to

the Respondent by issuing notice before admission of the said application. The

Company Appeal(AT)(Ins) No. 401 of 2018 Page 2 of 3 Adjudicating Authority cannot take the same ground as taken before in the

impugned order nor the Respondent can take plea of pre-existence of dispute

having not taken before this Appellate Tribunal.

Appeal is accordingly allowed with the aforesaid observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

(Justice A.I.S. Cheema) Member (Judicial) Akc/Sk

Company Appeal(AT)(Ins) No. 401 of 2018 Page 3 of 3