Om Logistics Ltd vs Msr Telecom Pvt. Ltd

Om Logistics Ltd. .....Appellant Vs. MSR Telecom Pvt. Ltd. ......Respondent

Present :

For Appellant: Mr. Chirag Malik, Advocate

19.08.2019 The Appellant - 'Om Logistics Ltd.' (Operational Creditor) filed

an application u/s 9 of the 'Insolvency and Bankruptcy Code, 2019 (for short,

'the I&B Code') on which the Adjudicating Authority by order dated 6th February,

2019 asked the Appellant to serve a copy to the 'Corporate Debtor' and ordered

to issue notice to the 'Corporate Debtor' at its registered office. The case was

ordered to be listed on 5th March, 2019.

On 5th March, 2019, learned counsel for the Appellant was not present

and so the application under Section 9 was dismissed with the following

observations:

"None appears for the applicant. As per the last

order dated 06.02.2019, the petitioner sought time for

Contd.

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serving the Corporate Debtor to its registered office

address but till today the order is not complied

with by the petitioner. In the circumstances, the

petition stands dismissed for non-

compliance/diligent prosecution."

In the present appeal, notices were issued but returned unserved. For the

said reason, we directed to publish notices through newspapers, one in (English)

'Times of India', New Delhi publication and another in (Hindi) 'Hindustan', New

Delhi publication which was published on 19th July, 2019 showing 19th August,

2019 as the next date of hearing at 10.30 A.M. In spite of publication, the

respondent has not appeared nor disputed the claim as made by the Appellant.

This apart inspite of notices issued on the respondent it appears that the

respondent is avoiding to accept the notice, so the notice was also issued and

served through e-mail, but Respondent has not appeared nor disputed the claim.

As the impugned order dated 5th March, 2019 had been dismissed for non-

prosecution and not on merit, to give one opportunity to the Appellant we set

aside the impugned order dated 5th March, 2019 and remit the case to the

Adjudicating Authority who will issue fresh notice to the respondent and pass

appropriate order on merit after giving opportunity to both the parties in

accordance with law. As we find that the Respondent ('Corporate Debtor') had

....contd.

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been avoiding notices, apart from issuance of notice by Speed post, the

Adjudicating Authority may order publication of notice in newspaper(s) as was

ordered by this Appellate Tribunal by fixing a time and the date of hearing.

The appeal is allowed with aforesaid observations.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A. I. S. Cheema] Member (Judicial)

[KanthiNarahari] Member (Technical)

ss/gc

Company Appeal (AT) (Insolvency)No.559 of 2019