Satish Kumar Sethi vs Varsha And Anr

Satish Kumar Sethi ...Appellant(s)

Versus

Varsha & Anr. ...Respondent(s)

Present: For Appellant : Mr. Mohit Chaudhary, Mr. Prakhar Mithal, Advocates For Respondents : Mr. Harsh Sharma, Advocate

ORDER

(Hybrid Mode)

02.02.2024: Heard Learned Counsel for the Appellant as well as

Learned Counsel appearing for the Financial Creditor.

2. This Appeal has been filed against the Order passed by the Adjudicating

Authority dated 17th January, 2024 by which Section 7 Application filed by

the Respondent herein has been admitted.

3. Learned Counsel for the Appellant challenging the Order contends that

the said order has been passed without service of notice to the Appellant,

Corporate Debtor. It is submitted that Learned Counsel for the Appellant has

referred to an Order dated 10th January, 2024 where the Adjudicating

Authority directed for fresh notice to the Corporate Debtor returnable on 17th

January, 2024. It is submitted that no notice was served as directed on 10th

January, 2024 and the Adjudicating Authority on 17th January, 2024 itself

has admitted the Application. Appellant could neither receive the notice nor

appeared before the Adjudicating Authority or filed any Reply. 2

4. Learned Counsel appearing for the Respondent submits that the

affidavit of service was filed on 04th January, 2024 along with email dated 11th

December, 2023 was annexed by which notice were served on the corporate

debtor.

5. We have considered the submissions of learned counsel for the parties

and have perused the record.

6. The Order dated 10th January, 2024 of the Adjudicating Authority is as

follows:

"There is no appearance on behalf of the CD, despite service of notice by e-mail.

Issue fresh notice to the CD returnable op 17.01.2024. The Applicant undertakes to serve notice upon the Respondent through all modes viz. registered post, speed post, courier service. E-mail and Dasti. Affidavit of service be filed within one week. Reply, if any, may be filed by the CD within one week from the date of receipt of the notice. Rejoinder, if any, may be filed before the next date of hearing.

List the matter on 17.01.2024."

7. After the Order dated 10th January, 2024, it was necessary for the

Operational Creditor to file an affidavit proving service of notice in pursuance

of the Order dated 10th January, 2024 there is nothing on record that service

was effected after order dated 10th January, 2024. The Court thus having

issued fresh direction of notice on 10th January, 2024, there ought to have

been satisfaction before proceeding to dispose of the matter finally. The

Company Appeal (AT) (Insolvency) No.217/2024 3

affidavit of service after the Order dated 10th January, 2024 admittedly was

not filed as submitted by Learned Counsel for the Respondent.

8. We thus are of the view that ends of justice will be served in setting

aside the Order dated 17th January, 2024 and revive the application before

the Adjudicating Authority for fresh consideration and to obviate the delay in

proceeding, we grant two weeks time to file Reply to the Section 7 Application.

Adjudicating Authority shall thereafter fix a date and proceed to decide the

matter in accordance with law.

Appeal is disposed of, accordingly.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Basant/nn

Company Appeal (AT) (Insolvency) No.217/2024