Quess Corp Limited vs Wardwiz India Solutions Private ...

IN THE MATTER OF: Quess Corp Ltd. Through Its Authorized Representative Laxmi Dutt Pandey ...Appellant Versus Wardwiz (India) Solutions Pvt. Ltd. ...Respondent Present: For Appellant : Mr. Narendra Hooda, Sr. Advocate along with Mr. Aviral Dhirendra, Ms. Pooja Tripathi.

For Respondent : None.

ORDER

(Hybrid Mode)

[Per : Justice Rakesh Kumar Jain (Oral)]

15.09.2025 This appeal is filed by the Unsuccessful Operational

Creditor whose application filed under Section 9 of the Insolvency &

Bankruptcy Code, 2016 ('Code') bearing CP (IB) No. 523/MB/2022 against

Wardwiz (India) Solutions Pvt. Ltd. ('Corporate Debtor') for the resolution a

of debt of Rs. 8,94,65,473/- has been dismissed.

2. Shorn of unnecessary details, the application filed by the Appellant

has been dismissed by the Tribunal on two ground. Firstly, the Appellant

has not delivered the demand notice prescribed under Section 8 of the Code

to the Corporate Debtor because the pin code was wrongly mentioned as

411043 instead of 411045 and secondly, on the ground that the Appellant

sent 230 invoices for the period of agreement which was operating from

25.06.2018 to 24.06.2019 in which 120 invoices of the month of July and

August, 2019 cannot be added.

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3. Notice in this appeal was issued on 25.11.2024 and at that time the

presence of Mr. Prakhar Tandon, Advocate was recorded on behalf of the

Respondent. On 06.01.2025, Counsel for the Respondent took time to file

reply within one week. However, thereafter the Respondent absented as no

one had appeared on its behalf. The Respondent remained unrepresented

and even no reply was filed. The Respondent has also even not appeared

today, therefore, the Respondent is proceeded against ex-parte and ex-parte

arguments have been heard.

4. It is pertinent to mentioned that the Respondent served the

application filed under Section 9 of the Code along with the notice issued

under Section 8.

5. On 23.03.2023, the Respondent appeared through Mr. Agam H. Maloo

and the Tribunal passed the following order

"Ld. Counsel for the Parties are present. Ld. Counsel for the Corporate Debtor seeks time to file and place on record Affidavit in Reply. Time is allowed. Affidavit in Reply be filed and placed on record, well before the adjourned date by duly serving a copy to the other side, well in advance, failing which the Corporate Debtor's right to file and place on record Affidavit in Reply, shall stand forfeited. List this matter on Board on 03.05.2023, for further consideration and hearing."

6. Thereafter, on the adjourned date i.e., 05.07.2023 the Tribunal

passed the following order :-

2|Page "Mr. Prakhar Tandon Ld. Counsel appearing for the Respondent & s. Vidhi Sharda Ld. Counsel appearing for the applicant are present.

Both sides present. Reply is not filed by the Respondent. Respondents right to file Reply is forfeited. List this matter on board on 07.08.2023."

7. On 05.07.2023, Mr. Prakhar Tandon, Advocate had appeared on

behalf of the Respondent. Time was granted to the Respondent to file the

reply but no reply was filed before the Tribunal as well.

8. Be that as it may, Counsel for the Appellant has submitted that the

Tribunal has committed an error in dismissing the application on the

ground that the demand notice was served on a wrong address by using the

pin code 411043 instead of 411045.

9. Counsel for the Appellant has submitted that the address of the

Respondent was taken from the Company Master Data i.e., Office No. 101,

1st Floor, Pride Purple Accord Baner Pune, Pune, MH 411045.

10. It is submitted that the demand notice was served on the correct

address but in the tracking report the pin code- 411043 is mentioned. He

has submitted that despite the aforesaid typographical error of the pin code

mentioned in the tracking report, the demand notice (Item Posted through

the speed post was delivered) which is evident from the track report

attached as Annexure A-6.

11. He has also submitted that the Respondent had appeared on

23.03.2023 and on 05.07.2023 but at no point of time any objection was

raised by the Respondent either orally or in writing that the demand notice

3|Page was not served upon it and the application filed under Section 9 was not

maintainable. Rather it is submitted that the Respondent though was

granted time to file reply as prayed yet no reply was filed for the reason best

known to it.

12. It is further submitted that in this appeal also the Respondent had

appeared through Counsel and time was granted to file the reply yet the

reply was not filed. He has thus submitted that the Respondent is playing

hide and seek with the court and is not coming forward with the truth that

the notice prescribed under Section 8 of the Code was actually received.

13. He has further submitted that in so far as the finding recorded by the

Tribunal on the issue that out of 230 invoices the Appellant cannot claim

the amount of 120 invoices is concerned, he has drawn our attention to

page 163 to 170 of the Appeal Paper Book to contend that even if 120

invoices are deducted out of 230 invoices, the amount involved in the

remaining 110 invoices is Rs. 5.43 Crores which is more than the threshold

of Rs. 1 Crore provided under Section 4 of the Code.

14. It is submitted that the Learned Tribunal has not looked into this

aspect of the matter and dismissed the application only on the ground that

the Appellant has also claimed the amount of the invoices of the period of

July to August, 2019.

15. We have heard Counsel for the Appellant and perused the record with

his able assistance. There is no dispute that application under Section 9 of

the Code cannot be filed until and unless notice under Section 8 is served

upon the Corporate Debtor.

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16. The notice under Section 8 dated 10.12.2021 was sent through speed

post on the address obtained from the Company Master Data.

17. The tracking report shows that the destination pin code has been

mentioned as 411043 but it is also not in dispute that the said item /

demand notice was delivered at the address of the Respondent despite pin

code no. 411043.

18. The Tribunal should have taken into consideration the issue as to

whether the demand notice had in fact been delivered to the Respondent

(Corporate Debtor) or not rather getting influenced with the wrong

mentioning of the pin code.

19. In so far as, the issue of 230 invoices minus 120 invoices is

concerned, the Tribunal has also not returned any finding that in case 110

invoices are only to be looked into even then whether the said invoices are

enough to cross the threshold limit of Rs. 1 Crore.

20. In such circumstances, we find it just and expedient, to set aside the

Impugned Order and remand the case back to the Learned Tribunal by

restoring the original application bearing CP (IB) No. 523/MB/2022 to

decide the application once again by recording a firm finding regarding

delivery of notice and also taking into account the amount involved in 110

invoices which are not in dispute, as to whether the said invoices cross the

threshold limit of Rs. 1 Crore or not.

21. With these observations, the present appeal is allowed. Impugned

Order is set aside. The applicaton is restored to its original number. The

5|Page matter is remanded back to the Learned Tribunal. The Parties are directed

to appear before the Tribunal on 24.09.2025. The parties shall bear their

own cost. I.A.'s, if any pending, are closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Mohammad Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sim/RR

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