Prateek Gupta vs Columbia Petro Chem Pvt. Ltd. & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 133 of 2018
Ratio decidendi
The rule this decision rests on
Where the Adjudicating Authority's admission of an operational creditor's application is challenged on the grounds of want of notice to the corporate debtor and existence of a dispute, a bare assertion that no notice was served is not sufficient to disturb the order where no record supports that assertion; the Appellate Tribunal will not decide whether notice was given under Section 8(1) absent any record that notices were issued to the corporate debtor. An appeal by a director and shareholder who was not a party before the Adjudicating Authority by name is treated as within limitation where the period is computed from the appellant's date of knowledge of the impugned order. A dispute which is said to bar admission of an operational creditor's application must be shown from the record to have been raised by the corporate debtor before issuance of the demand notice under Section 8(1); absent any such record, the plea of existence of dispute fails. Service of a demand notice under Section 8(1) is established where the record includes the advocate's letter of dispatch and the postal receipt and tracking record showing booking and delivery with acknowledgement at the corporate debtor's office; on such material, the Tribunal finds the notice served on the corporate debtor.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Prateek Gupta ...Appellant
Vs
M/s Columbia Petro Chem Pvt. Ltd. & Anr. ....Respondents
Present: For Appellant: Ms. Gauri Rishi and Ms. Srishti Juneja, Advocates. For Respondent: Ms. Radhika, Mr. Atul Kumar Singh and Mr. Janender Kumar Chumbak, Advocates for R-1.
ORDER
28.05.2018: This appeal has been preferred by Mr. Prateek Gupta, Director and shareholder of 'Petrolube India Limited' against order dated 25th January, 2018 passed by the Adjudicating Authority (National Company Law Tribunal), Bench III, New Delhi whereby and whereunder an application under Section 9 preferred by Respondent - 'M/s Columbia Petro Chem Pvt. Ltd.' has been admitted, order of moratorium has been passed and Interim Resolution Professional has been appointed with certain directions.
2. The impugned order was passed on 25th January, 2018 but the appeal was filed on 26th March, 2018. However, in view of the fact that the Appellant is the Director and Shareholder of the Corporate Debtor and was not a party before the Adjudicating Authority by name, on the basis of date of knowledge of the Appellant, we find that the appeal is on time.
3. Learned counsel appearing on behalf of the appellant submitted that the impugned order has been passed by the Adjudicating Authority without notice to the Corporate Debtor. She further submitted that notice under Section 8(1) was never served on the Corporate Debtor.
-2- 4. Learned counsel appearing on behalf of the Respondent disputed such claim and taken plea that notices were served on the Corporate Debtor.
5. However, in absence of any record to suggest that the notices were issued to the Corporate Debtor, we are not deliberating on question whether the application was admitted without notice to the Corporate Debtor or not.
6. The other question raised by the learned counsel for the appellant is that there is an existence of dispute. But there is nothing on record to suggest that the Corporate Debtor disputed any of the claim of the 'Operational Creditor' prior to issuance of notice under Section 8(1) of the I&B Code.
7. Learned counsel for the Appellant submits that demand notice under Section 8(1) was not served on the Corporate Debtor. Referring to the notice under Section 8(1) dated 03.08.2017 it is submitted that record suggest that the said notice was served in the Post Office at Mera Bagh.
8. Learned counsel appearing on behalf of the Respondent brought on record the letter dated 07.02.2017 issued by Mr. Vinit N Misha, Advocate, High Court Mumbai, whereunder the demand notice issued under Section 8(1) on the Corporate Debtor. The Respondent has also filed the receipt issued by the 'Indian Post' and track record of consignment shows that the notice under Section 8(1) dated 07.02.2017 was booked on 09.02.2017, and was delivered with acknowledgement at Punjabi Bagh Office of the Corporate Debtor. This is apparent from the 'Indian Post's' receipt at page 61. Therefore, we find that notice under Section 8(1) was served on the Corporate Debtor.
Company Appeal (AT) (Insolvency) No. 133 of 2018 -3-
9. For the reasons aforesaid, we are not inclined to interfere with the impugned order. We find no merit in this appeal. It is accordingly dismissed. No costs.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice Bansi Lal Bhat] Member (Judicial) am/gc
Company Appeal (AT) (Insolvency) No. 133 of 2018
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