Neeraj Gupta, Suspended Director & ... vs Raj Duplex Pvt. Ltd. & Anr
- CitationCompany Appeal(AT)(Insolvency) No. 247 of 2018
Ratio decidendi
The rule this decision rests on
Where an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 is founded on a demand notice under Section 8(1) that was never served on the corporate debtor, having been dispatched to a wrong address, the admission of that application and every order and action flowing from it cannot stand, and the Adjudicating Authority's order of admission is liable to be set aside.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Mr. Neeraj Gupta, Suspended Director ...Appellant & Shareholder of Sardhana Papers Pvt. Ltd.
Vs
M/s Raj Duplex Pvt. Ltd. & Anr. ....Respondents Present: For Appellant: Mr. Nitesh Jain and Ms. Arveena Sharma, Advocates For Respondents: Mr. Jatin Sethi, Advocate along with Shri Amit Kumar- authorized representative.
ORDER
31.05.2018 This appeal has been preferred by Mr. Neeraj Gupta, Director
and shareholder of M/s Sardhana Papers Pvt. Ltd. ('Corporate Debtor') against
the judgment dated 02.05.2018 passed by the Adjudicating Authority
(National Company Law Tribunal) Allahabad in Company Petition (IB) No.
160/ALD/2017. By the impugned order the application under Section 9 of
Insolvency & Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code')
filed by Respondent -M/s Raj Duplex Pvt. Ltd ('Operational Creditor') has been
admitted, order of moratorium has been passed and Resolution Professional
has been appointed.
2. Learned Counsel appearing on behalf of the Appellant submits that
the impugned order was passed without serving any 'Demand Notice' under
Section 8(1) of 'I&B Code' and the Adjudicating Authority failed to consider
the same. It is also submitted that the matter has been settled between the
parties.
Company Appeal(AT)(Ins) No. 247 of 2018 Page 1 of 2
3. Mr. Jatin Sethi, learned Counsel on behalf Respondent 'Operational
Creditor' has appeared and not disputed the fact that notice under Section
8(1) of I & B Code was not served on the 'Corporate Debtor' as it was issued
on a wrong address. Learned Counsel appearing on behalf of 'Operational
Creditor' submits that the matter has been settled.
4. For the reasons aforesaid, we set aside the order dated 02.05.2018
passed by the Adjudicating Authority (National Company Law Tribunal)
Allahabad in Company Petition (IB) No. 160/ALD/2017.
5. In effect, order(s) passed by the Adjudicating Authority appointing
'Interim Resolution Professional', declaring moratorium, freezing of account
and all other order(s) passed by the Adjudicating Authority pursuant to
impugned order and action, taken by the 'Interim Resolution Professional,
including the advertisement, published in the newspaper calling for
applications and all such orders and actions are declared illegal and are set
aside. The 'Corporate Debtor' is released from all the rigour of law and is
allowed to function independently through its Board of Directors from
immediate effect.
6. The Adjudicating Authority will fix the fee of 'Interim Resolution
Professional' and the 'Corporate Debtor' will pay the fees for the period he has
functioned. Appeal is allowed. No cost.
[Justice S.J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial) Akc/gc
Company Appeal(AT)(Ins) No. 247 of 2018 Page 2 of 2
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