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Iqbal Singh vs Rakesh Kumar Gupta

National Company Law Appellate Tribunal28 April 2025Ashok Bhushan

Ratio decidendi

The rule this decision rests on

Where the Adjudicating Authority permits substituted service by newspaper publication, that publication must be made in a region where the party is known to reside or where it is reasonably likely to bring the notice to his attention; publication in a region unconnected with the party's address, as shown on the face of the application, does not constitute effective service. Where a party has not been effectively served and an order is passed ex parte against him on the strength of a defective affidavit of service, that order cannot be sustained and is liable to be set aside and remitted to the Adjudicating Authority for fresh consideration, with an opportunity to file a reply.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT) (Insolvency) No. 110 of 2025&I.A. No. 496 of 2025

IN THE MATTER OF: Iqbal Singh & Anr. ...Appellants

Versus

Rakesh Kumar Gupta, (Liquidator of Namdhari Food International Pvt. Ltd.) ...Respondent

Present: For Appellant : Mr. Himanshu Gupta, Ms. Yaganshi Singh and Mr. Rohan S. Nandy, Advocates

For Respondent : Mr. Abhishek Anand, Mr. Karan Kohli and Ms. Palak Kalra, Advocates for RP.

ORDER

(Hybrid Mode)

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.

Company Appeal (AT) (Insolvency) No. 110 of 2025 2 of 4 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 By newspaper Served on Suspended Board of Directors publication on 13.04.2024 of Namdhari Food International 13.04.2024. Private Limited Sri Jiwan Nagar, District Sirsa, Haryana - 125075 (Respondent No.1)

Mr. Surjit Singh Member of By newspaper Served on Suspended Board of Directors publication on 13.04.2024" of Namdhari Food International 13.04.2024 Private Limited Sri Jiwan Nagar, District - Sirsa, Haryana - 125075 (Respondent No.2)

Company Appeal (AT) (Insolvency) No. 110 of 2025 3 of 4

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.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) pks/md

Company Appeal (AT) (Insolvency) No. 110 of 2025 4 of 4

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