M & B Engineering Limited vs Mascot Suryapur Llp

IN THE MATTER OF: M/s M & B Engineering Ltd. Through its Sr. Manager and authorized Signatory Mr. Tarun Vijay S/o Mr. Prem Narayan Having Registered office at: MB House, Chandroday Society Stadium Road, Ahmedabad- 380014 ...Appellant Versus

Mascot Suryapur LLP Having its Registered office at: Block No. 86B, Resi: Puna Gam Village Makhinga, Taluka, Palsana, Surat, Gujarat-394315. ...Respondent

Present: For Appellant : Ms. Anushree Kapadia, Mr. Pranay Bhardwaj & Mr. Sivank Saran Singh, Advocates. For Respondent : Mr. Aakash Modh, Advocate.

JUDGMENT

(Hybrid Mode)

[Per: Justice Mohd. Faiz Alam Khan, Member (Judicial)]

Present appeal has been preferred by the appellant under section 61

of the Insolvency and Bankruptcy Code 2016, being aggrieved by the order

dated 28.06.2024 passed by Learned Adjudicating Authority, National

Company Law Tribunal Division Bench-I, Ahmedabad passed in Company

Petition No.(CP)(IB)219(AHM)2024, whereby the application moved by the

appellant under Section 9 of the Insolvency and Bankruptcy Code 2016 has been dismissed for want of proper service of notice under Section 8 of the

code.

2. Ld. Counsel for the appellant submits that Ld. tribunal has dismissed

the application moved by the appellant under Section 9 of the IBC on the

ground that the notice under Section 8 of the IBC has not been served on

the Corporate debtor as required by law.

3. Learned Counsel for the appellant submits that appellant is engaged

in the business of design, manufacture, supply and erection of Pre

Engineering Building Structures and it is also having a sister concern

namely Phenix Building Solutions Private Limited having common directors

and common shareholders with the operational creditor.

4. It is further submitted that the corporate debtor was desirous of

setting up an industrial unit at Makhinga, Surat, in Gujarat and

approached the operation creditor and after much deliberations the

Operational creditor through its division phenix Construction Technology

submitted final quotation and a purchase order was accordingly issued by

the CD. This purchase order was further revised and final purchase order

was issued on 06.01.2022.

5. It is further submitted that Appellant/operational creditor has

completed the work to the satisfaction of the CD and issued various

invoices. The completion certificate was also issued by the Operational

Creditor in favour of the CD on 15.03.2023, however out of invoices of the

amount of Rs. 9,73,90,511/- and Rs. 93,21,410/- payment of Rs.

9,01,67,564/- and Rs. 91,634/- (In lieu of TDS) was made and thus Rs.

72,22,947/- and Rs. 92,29,776/- remained as outstanding.

Company Appeal (AT) (Ins) No. 1328 of 2024 2 of18

6. It is further submitted that various letters were written by the

Appellant to the CD and also various reminders were issued but the

outstanding amount was not paid and in this regard a legal Notice was

issued by the Appellant demanding the payment of outstanding dues and

the said notice was delivered on the registered office, as per the record

available in the office of the Ministry of Corporate Affairs on 30.11.2023.

7. It is further submitted that as the payment of the outstanding dues

was not made by the CD, the appellant issued Demand Notice under Section

8 of the IBC on 30.12.2023 and the said demand notice was sent to the CD

on its Email ID and Registered office, as per the record available with the

Ministry of Corporate Affairs, as well as at the address of its Head Office

and that notice was served through email as well at the address of the Head

office of the CD and the notice which was sent to the registered office was

returned with the endorsement that 'such office is not in possession of the

CD and is occupied by some other Company'. Thereafter an application was

moved by the appellant under Section 9 of the IBC but was withdrawn due

to some technical defects with the liberty to file afresh.

8. It is also submitted that a fresh Notice under Section 8 of the IBC was

issued by the appellant on 18.03.2024 for unpaid dues of Rs. 1,21,27,895/-

through Email at the email address of the CD at corp@identize.com as was

available in the records of the Ministry of Corporate Affairs and also at email

at dipak@mascotinfra.com as given to NeSL in for issuance of Form D. Notice

was also sent to the registered office of Mascot Suryapur LLP as available in

the records of the Ministry of the Corporate Affairs and also at the Head

office of Mascot Suryapur LLP as recorded in the website of Mascot

Company Appeal (AT) (Ins) No. 1328 of 2024 3 of18 Suryapur LLP. The demand notice was successfully served through email

and at the head office of the Mascot Suryapur LLP but the notice which was

addressed to the registered office of the Mascot Suryapur LLP was returned

with an endorsement that the company has refused to accept service.

9. It is further submitted that despite the receipt of the notice the

corporate debtor did not pay any amount nor gave any reply or raise any

dispute and therefore appellant was compelled to file a petition for initiation

of CIRP against the CD under section 9 of the IBC which was dismissed by

passing the impugned judgment.

10. Learned Counsel for the appellant submits that learned tribunal has

committed manifest illegality in dismissing the application on the ground of

insufficient service of notice under Section 8 of the IBC, as it was evident on

record that the notice under Section 8 of the IBC has been sufficiently

served on the corporate debtor.

11. It is also submitted that the notice under Section 8 of the IBC was

served at the address of the registered office of the corporate debtor, as

provided in the office of the Ministry of Corporate Affairs and when the same

has been returned for reasons such as 'refused' it must be deemed to be a

complete service of the notice as provided under rule 5 of the Insolvency and

Bankruptcy Code (Application to Adjudicating Authority) Rules 2016.

12. It is further submitted that the notice to the corporate debtor was sent

on the email address and address of it which was reflecting on the website of

the Ministry of Corporate affair and on the website of the CD and during the

hearing before the tribunal when a question was raised by the bench

Counsel for the appellant sought some time to provide the print out of the

Company Appeal (AT) (Ins) No. 1328 of 2024 4 of18 website, however no such time was granted and the impugned order was

passed. It is vehemently submitted that an opportunity must have been

provided by the learned Tribunal to answer the query put forth by the

tribunal.

13. It is further submitted that service of notice under Section 8 of the

IBC is sufficient on the corporate debtor, even if the notice sent by post has

been returned with the endorsement 'refused' or 'address shifted' and it was

the duty of the corporate debtor to immediately inform the Ministry of

Corporate Affairs whenever there is any change in the registered office of the

company and in absence of the same when the notice has been served on

the corporate office i.e. the head office of the CD, the requirement of Section

8 of the IBC is complete and therefore the petition filed by the appellant was

not defective.

14. It is also submitted that under rule 5 of the insolvency and

bankruptcy code (Application to Adjudicating Authority) Rules 2016 apart

from the notice to be sent through speed post, provision has also been made

to serve the CD on email address of the corporate debtor, however learned

Tribunal has failed to appreciate the facts of the case in right perspective

and therefore the impugned order is liable to be set aside.

15. Ld. Counsel for the appellant further submits that the Ld. Tribunal

has failed to pass a reasoned order and this appellate tribunal in CA (AT)

(Ins) no. 1184 and 1185 of 2024 filed by the sister concern of the appellant

i.e. PBSPL has been passed on 27.08.2025 has been pleased to accept the

service of demand notice in the manner the same has been served in the

instant case also.

Company Appeal (AT) (Ins) No. 1328 of 2024 5 of18

16. It is also submitted that when the demand notice dated 30.12.2023

was successfully delivered by registered post to the head office/corporate

office of the Respondent as is available on their website the same is

sufficient service reliance in this regard has been placed on Alloysmin

Industries vs. Raman Casting (P.) Ltd. -[2019] 102 taxmann.com 404

(para 15), Counfreedise vs. Timex India Group Ltd. - [2019] 105

taxmann.com 131 (para 4).

17. Ld. Counsel for the appellant also relied on Shubham Jain vs.

Gagan Ferrotech Ltd. & Ors. (29.01.2021- NCLAT, CA (AT) (Ins) No.

1008 of 2019 (para 7), Bijay Pratap Singh vs. Unimax International -

[2020] 118 taxmann.com 414 (NCLAT) (Paras 35 & 37) Folloed in

Unimax International vs. Soho Infrastructure (P.) Ltd. -[2020] 118

taxmann.com 318 (NCLT- New Delhi) (Para 11) in order to emphasize that

if a notice sent by registered post is returned as refused still it would be a

valid service of the same.

18. Ld. Counsel for the appellant further relied on Shiv Glitz Hotels and

Resorts Ltd. Liability Partnership v. Oravel stays Ltd., [09.09.2024, CA

(AT) (Ins) 577/2024] (para 9), Tek Travels Pvt. Ltd. v. Altius Travels Pvt.

Ltd. [19.04.2021, CA (AT) (Ins) No. 172 of 2020] (Para 20-22) in order to

show that no opportunity to cure would be the violation of principles of

natural justice.

19. Ld. Counsel for the appellant submits that there is/was no prior

dispute between the parties and the alleged dispute which has been shown

by the respondent has only been carved out to defeat the appeal of the

appellant.

Company Appeal (AT) (Ins) No. 1328 of 2024 6 of18

20. Learned Counsel for the Respondent however submits that the appeal

is liable to be dismissed as there was pre-existing dispute existing between

the parties even before issuance of demand notice as the corporate debtor

through an email dated 25th February 2022 has informed the operational

creditor about the inferior quality of the columns supplied by it and also

that the columns have not been supplied in accordance with the design and

are of inferior quality.

21. It is also submitted that corporate debtor sent another Email on 10th

January 2023 highlighting the poor quality of the supply and also in its

email dated 12th January 2023 highlighted many issues with regard to

various aspects of the supplied items but there was no response from the

operational creditor.

22. It is further submitted that client of the corporate debtor also lodged

many complaints about various issues in the building which were

communicated to the operational creditor vide email dated 18th September

2023 and despite the client of the corporate debtor was required a stability

certificate but only a completion certificate was provided by the operational

creditor on 15th March 2024.

23. It is further submitted that the corporate debtor never received any

demand notice from the operational creditor and the order of the tribunal is

justified and there is no valid ground emerging for making any interference

therein.

24. It is also submitted that the appeal is also not maintainable on the

ground that the operational creditor has combined the principal and interest

amount to reach the minimum threshold limit as stipulated under Section 4

Company Appeal (AT) (Ins) No. 1328 of 2024 7 of18 of the IBC and there is no illegality in the impugned order and therefore the

appeal preferred by the appellant is liable to be dismissed.

25. We have heard this matter on 14.11.2025 and in the meantime, the

appellant has filed his written submissions however the Respondent has not

filed any written submissions.

26. Having heard Ld. Counsel for the parties and having perused the

record, in our considered opinion the main issue that arises for

consideration in the present Appeal is whether service of demand notice u/s

8 of the Code sent by the operational creditor to the Corporate Debtor, is

sufficient or not for initiation of Corporate Insolvency Resolution Process

under Section 9 of the Code.

27. For better understanding of the case the relevant Sections of the

Insolvency and Bankruptcy Code, 2016 and relevant Regulations are

reproduced as hereunder;

"Sec. 8: (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed.

(2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor--

(a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute;

(b) the repayment of unpaid operational debt--

(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or

(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.

Company Appeal (AT) (Ins) No. 1328 of 2024 8 of18 Explanation.-For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred.

Sec. 9 of the Insolvency and Bankruptcy Code 2016:

(1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process.

(2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed.

(3) The operational creditor shall, along with the application furnish--

(a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor;

(b) an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt;

(c) a copy of the certificate from the financial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and

(d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional.

(5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order--

(i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,-

(a) the application made under sub-section (2) is complete;

(b) there is no repayment of the unpaid operational debt;

(c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor;

(d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and

(e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any.

Company Appeal (AT) (Ins) No. 1328 of 2024 9 of18

(ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if-

(a) the application made under sub-section (2) is incomplete;

(b) there has been repayment of the unpaid operational debt;

(c) the creditor has not delivered the invoice or notice for payment to the corporate debtor;

(d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or

(e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under sub clause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority.

(6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section."

Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016.

5. Demand notice by operational creditor. -- (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely-

(a) a demand notice in Form, 3; or

(b) a copy of an invoice attached with a notice in Form, 4. (2) The demand notice or the copy of the invoice demanding payment referred to in sub-section (2) of Section 8 of the Code, may be delivered to the corporate debtor,

(a) at the registered office by hand, registered post or speed post with acknowledgement due; or

(b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor.

(3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any.

6. Application by operational creditor. -

(1) An operational creditor, shall make an application for initiating the corporate insolvency resolution process against a corporate debtor under Section 9 of the Code in Form, 5, accompanied with documents and records required therein and as specified in the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.

Company Appeal (AT) (Ins) No. 1328 of 2024 10 of18 (2) The applicant under sub-rule (1) shall dispatch forthwith, a copy of the application filed with the Adjudicating Authority, by registered post or speed post to the registered office of the corporate debtor.

28. Thus, it is evident from the above provisions that a petition under

section 9 can only be filed against the corporate debtor after giving prior

notice under section 8 of the IBC to the corporate debtor and the main

requirements of the same are that the demand notice under section 8 of the

IBC must be served on the corporate debtor and even if after 10 days of its

service the payment is not made or if there is no valid prior dispute emerges,

the application for commencement of the CIRP may be filed in Form 5 of

Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules,

2016 and supporting evidence such as invoices, bank statements, or

written contracts must be attached therewith. Thus serving of demand

notice under section 8 of the Code is a condition precedent of filing an

application under section 9 of the Code. Section 8(1) requires the

operational creditor to deliver the notice of demand of unpaid operational

debt or a copy of the invoice demanding payment to the corporate debtor at

their registered office and the demand notice is required to be in the form

and manner as prescribed.

29. Perusal of the impugned order would reveal that learned tribunal has

rejected the application moved by the appellant under section 9 of the IBC

on following scores: -

* That the demand notice dated 18th March 2024 was not served

successfully on the CD in terms of rule 5 (2)(a) of the Insolvency and

Bankruptcy (Application to Adjudicating Authority) Rules, 2016 as the

Company Appeal (AT) (Ins) No. 1328 of 2024 11 of18 registered office of the respondent corporate debtor was not in possession of

it and was occupied by another company and therefore the company of the

CD was not in existence at the address whereon the demand notice was

sent.

* That the operational creditor, when aware that that CD company does not

exist at that address he should have chosen some alternative mode for the

service of the demand notice.

* That the service stated to be made on the email address of the CD and on

one Mr Dipak is also not sufficient for the reason that no evidence or

material was placed on record to connect these email addresses with the

corporate debtor and the designation of above mentioned Dipak has also not

been given therein.

* That the demand notice sent to the head office of the corporate debtor

situated at A-602, Empire business hub, Science City Road, Ahmedabad

380006 was also not served as no website or screenshot of the same or any

other evidence was placed on record to prove that such website is the

original website of the corporate doctor and that the head office stated is

actually the head office/corporate office of the corporate debtor.

* The reminder dated 9th November 2023 is also not proved to have been

served on the corporate doctor as there is no proof attached there with of

such service and also that the record of the Ministry of Corporate Affairs

which is produced on record only provides for the address of the registered

office of the corporate debtor only and no address of the corporate office is

provided in the record of the MCA.

Company Appeal (AT) (Ins) No. 1328 of 2024 12 of18

30. We having considered the impugned judgment in the background of

the submissions made by the parties and the finding recorded by the Ld.

tribunal, find that the appellant before learned tribunal has moved an

application and submitted Form No. 5 and in part III of the same, apart from

other particulars and information given pertaining to the debt and Default,

the details of the notice dated 18th March 2024, issued by the appellant

under Section 8 of the IBC, were also given. It is also reflected that it has

been mentioned therein that the appellant issued a fresh demand notice

dated 18th March 2024 upon the corporate debtor Mascot as per the

provisions of Section 8 of the IBC claiming principal amount of Rs.

92,29,776/- plus contractual interest thereon amounting to Rs. 28,98,119/-

totalling operational debt of Rs. 1,21,27,895/-.

31. It is also categorically stated in the same column that the demand

notice dated 18th March 2024 has been served upon Mascot via email sent

at email address of the CD i.e. corp@identize.com which was available in the

record of the MCA and also at the email address of the CD i.e.

dipak@mascotinfra.com as per Form-D record of default. It is also mentioned

therein that notice was also sent to registered office address /Mascot at

Block number 86, Puna Gam village, Makhinga, Taluka Palsana Surat

Gujarat, 395315 as per records of Ministry of Corporate Affairs as well as at

the address of the CD/Mascot's Head office situated at A-602, Empire

business hub, Science City Road, Ahmedabad 380006 as displayed on

CD/Mascot's website.

32. It is also reflected from part III of the form 5 that it is specifically

stated therein that the demand notice dated 18th March 2024 has been

Company Appeal (AT) (Ins) No. 1328 of 2024 13 of18 successfully delivered at Mascots head office as per the address displayed on

Mascots website and significantly it is also stated that the demand notice

issued to Mascots registered office address has been returned with an

endorsement that the company has "refused to accept the same". The emails

which were sent on the above mentioned email addresses as well as the

tracking report and proof of the service by speed post, as above, were also

enclosed therewith.

33. Perusal of the impugned order will reveal that learned tribunal did

not find the service of notice sent by the operational creditor to the CD

through registered post/speed post, sufficient, on the score that the demand

notice dated 18th March 2024 which was addressed to the registered office of

the corporate debtor as per MCA record was undelivered as admittedly

registered office is not in possession of the respondent corporate debtor and

is occupied by another company which is reflected from the previous service

report of previous demand notice dated 30th December 2023. However,

learned tribunal has not returned any finding as to whether the claim of the

appellant that notice sent through speed post to the registered address of

the corporate debtor, as is available in the records of the MCA, has not

returned with such endorsement, as it has been claimed by the appellant

that the notice sent to the registered address of the company (CD) has been

received back with the endorsement that 'the company has refused to accept

service'.

34. It is also evident that the tribunal in order to negate the service of

demand notice dated 18th March 2024, sent to the registered address of the

company (CD), has relied on the endorsement which was made by the postal

Company Appeal (AT) (Ins) No. 1328 of 2024 14 of18 authorities on the notice which was issued by the appellant on 30th

December, 2023. In our considered opinion this exercise was not

permissible as the duty of the tribunal was to focus on the issue, as to

whether the notice dated 18th March 2024 has been refused by the corporate

debtor which was sent at the registered address of the CD available in the

record of the MCA and what would be the effect of such refusal. Therefore,

in our considered opinion the tribunal has committed a mistake apparent on

the face of the record in relying on the endorsement on the notice which was

sent earlier and an application based on that notice was earlier filed by the

appellant and was permitted to be withdrawn by the tribunal with the liberty

to file a petition afresh.

35. We also notice that in paragraph number 35 and 36 of the impugned

order Ld. tribunal has opined that when the operational creditor was aware

that the company does not exist at the address where the notice was earlier

sent by the operational creditor and has been returned with the remark that

the said company does not exist thereon, then in that case the operational

creditor should have chosen some alternative mode for the service of the

demand notice as provided under Rule 5 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016. It is also opined that the

operational creditor was having knowledge of the fact that registered office of

the CD is not existing at the above mentioned address.

36. We have again not found the approach of learned tribunal as correct.

It is to be recorded that under Rule 5 of the Insolvency and Bankruptcy

(Application to Adjudicating Authority) Rules, 2016, service at the registered

office of the corporate debtor has to be made by hand, registered post or

Company Appeal (AT) (Ins) No. 1328 of 2024 15 of18 Speed Post with acknowledgement due, apart from service by electronic mail

service to a whole time director or designated partner or key managerial

personal of the CD has been provided. Therefore, if in addition to the other

modes provided in the above Rule 5, the operational creditor has again sent

notice through speed post on the registered office of the CD, as stated to be

recorded in the records of the MCA, it can ipso facto may not be sufficient to

discard the service without going into the details, as to whether the said

notice has been properly served. If the notice sent by the operational creditor

on the registered office of the CD, as is reflected from the record of the MCA

and the same has been received with endorsement as 'refused by the CD', a

crystal clear finding should have been recorded by the tribunal with regard

to the fact as to why the refusal endorsed on such notice could not be

accepted as sufficient service, which the tribunal has not done.

37. It is also pertinent to mention here that the respondent corporate

debtor in the reply filed before this appellate Tribunal in para number 17 of

the same has admitted that it's registered office address as recorded in the

Ministry of Corporate Affairs data is accurate and the company continues to

operate from this address. Thus if the company/CD was admittedly working

at the address recorded in the data of the MCA then the refusal of the notice

dated 18th March, 2024 sent on this address, appears to be having more

significance. It is also to be noticed that in the reply affidavit filed before this

appellate Tribunal, on behalf of the respondent corporate debtor, by Sanjay

N Patel partner of the CD, the addresses which are shown are the same on

which the notice dated 18th March 2024 were sent by the operational

creditor.

Company Appeal (AT) (Ins) No. 1328 of 2024 16 of18

38. We also notice that learned Tribunal has also not believed the service

through email on the score that the body of the email so addressed has not

provided the designation of the person to whom the said notice was

addressed and no evidence or material of the corporate debtor was placed on

record in support of alternate email address i.e. dipak@mascotinfra.com.

39. It is to be recalled that no doubt the burden to prove a fact is on the

party who is alleging in the existence of the same, but a party may not be

compelled to bring on record even those evidences and facts which in the

normal course it could not produce. If learned Tribunal was having any

suspicion or vacuum with regard to the service through email it can very

well provide an opportunity to the appellant to bring on record the desired

proof or document which may be necessary for proving the service of the

notice through email on such officer. We are not inclined to further

investigate and appreciate these facts, pertaining to the service of notice on

the email address of the CD as mentioned herein above in the background of

the fact that certain documents have been filed by the respondent/CD

before this appellate tribunal claiming some correspondence done with the

operational creditor through email and one of such Email appears to be the

one on which the notice has been sent by the appellant, as we are intending

to remand the matter back to learned tribunal and in our considered

opinion this exercise must be done by Ld. tribunal, after providing

opportunity of hearing to the parties.

40. In the ultimate analysis, we find that the impugned order passed by

Ld. NCLT rejecting the Section 9 petition filed by the Appellant on the issue

Company Appeal (AT) (Ins) No. 1328 of 2024 17 of18 of non-service of notice dated 18th March 2024 sent by the appellant under

Section 8 of the Code, deserves to be interfered with by us.

41. Accordingly, this appeal stands allowed by setting aside the order

dated 28.06.2024 impugned herein passed in CP/IB/219/AHM/2024,

which stand restored and the matter is remanded back to the NCLT,

Ahmedabad for decision afresh on merits, after providing reasonable

opportunity to the parties of letting in evidence, on which they intend to

rely, strictly in accordance with law.

42. We clarify that we have not touched upon any issue with regard to

alleged claim of the respondent of not meeting threshold by including

interest with the principal amount and also the claim of pre-existing

dispute, for the reason that the tribunal has not recorded any finding

thereon in the impugned order and on remand the parties will be free to

raise any such issue and also place whatever material they have in support

of their case before the tribunal and thereafter the tribunal would be free to

arrive at an appropriate finding, in this regard.

43. Needless to record that Ld. NCLT shall pass order afresh without being influenced by any observations made in this order.

44. The parties shall appear before the Tribunal on 11.12.2025.

45. There is no order as to costs. Pending IA if any is also disposed of.

[Justice Mohd. Faiz Alam Khan] Member (Judicial)

[Indevar Pandey] Member (Technical) New Delhi.

27.11.2025.

sr

Company Appeal (AT) (Ins) No. 1328 of 2024 18 of18