Sh. Sharad Kesarwani vs M/S. Planetcast Media Services Limited ...

Sh. Sharad Kesarwani ...Appellant

Vs.

M/s. Planetcast Media Services Limited & Anr. ...Respondents

Present: For Appellant: - Mr. Mritunjay Tiwar Y and Mr. Sumit Kumar, Advocates.

For Respondents: - Mr. P.K. Mittal and Mr. M.K. Tiwari, Advocates for R-1. Mr. Sanyam Goyal and Mr. Mohd. Nazim Khan, PCS and Mr. Mohtashim Kibriya, Advocate for RP.

ORDER

07.08.2018─ This appeal has been preferred by Mr. Sharad

Kesarwani, Shareholder and Director of 'M/s. Softline Media Limited'-

('Corporate Debtor') against the impugned order dated 26th April, 2018

passed by the Adjudicating Authority (National Company Law Tribunal),

Bench-III, New Delhi, whereby and whereunder the application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter

referred to as "I&B Code") preferred by 'M/s. Planetcast Media Services

Limited'- ('Operational Creditor') has been admitted, order of 'Moratorium'

has been passed and 'Interim Resolution Professional' has been

appointed.

Contd/-.............

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2. The main ground taken by the Appellant is that no demand notice

under Section 8(1) of the 'I&B Code' was served on the 'Corporate Debtor'

and without service of notice, the application under Section 9 was

admitted.

3. Learned counsel for the Appellant referred to the address of

demand notice issued in Form-4 wherein registered office address of the

'Corporate Debtor' at 38, Rani Jhansi Road, Jhandewalan, New Delhi-

110055 has been shown. It is informed that the office of the Company is

now situated at Noida and the Noida premises has been closed by an

order of a Court of Competent Jurisdiction.

4. On 24th July, 2018, the 'Resolution Professional' appeared and

informed that the Appellant has not handed over the records of the

Company. It was informed that the office at Noida has been locked by the

Civil Court. In such situation, we allowed the 'Resolution Professional' to

move before the Civil Court, by bringing to its notice that proceeding

under 'I&B Code' having initiated, the order passed by the Adjudicating

Authority will prevail over the orders of the other court.

5. Mr. Sanyam Goyal, Company Secretary appearing on behalf of the

'Resolution Professional' submitted that he visited the registered office of

the 'Corporate Debtor' at 38, Rani Jhansi Road, Jhandewalan, New Delhi-

Company Appeal (AT) (Insolvency) No. 272 of 2018 -3-

110055 and was detected that no such office of the 'Corporate Debtor' is

existing over there. It is the 'Operational Creditor' who informed the

'Resolution Professional' that the office of the 'Corporate Debtor' is

situated at Noida. Thereafter, the 'Resolution Professional' went there

and found the registered office locked and sealed by the order of the Civil

Court.

6. From the stand taken by the 'Resolution Professional', we find that

the demand notice under section 8(1) was issued by the 'Operational

Creditor' in a wrong address at 38, Rani Jhansi Road, Jhandewalan, New

Delhi- 110055, where the office of the 'Corporate Debtor' was not

situated. From the statement made by 'Resolution Professional', we find

that the 'Operational Creditor' had knowledge of present address of the

'Corporate Debtor', at Noida but no notice under Section 8(1) was issued

at the Noida address. However, even if it is to be issued, we are of the

view that the notice cannot be served as the office has been locked and

sealed by an order of a Court of Competent Jurisdiction.

7. In view of the aforesaid fact, as we find that demand notice under

section 8(1) was not served on the 'Corporate Debtor' or on its Directors

or the Shareholders, we set aside the impugned order dated 26th April,

2018.

Company Appeal (AT) (Insolvency) No. 272 of 2018 -4-

8. In effect, order (s), passed by the Adjudicating Authority appointing

any 'Interim Resolution Professional', declaring moratorium, freezing of

account, and all other order (s) passed by the Adjudicating Authority

pursuant to impugned order and action, if any, taken by the 'Interim

Resolution Professional', including the advertisement, if any, published

in the newspaper calling for applications all such orders and actions are

declared illegal and are set aside. The application preferred by

Respondent under Section 9 of the 'I&B Code' is dismissed. Learned

Adjudicating Authority will now close the proceeding. The 'Corporate

Debtor' (company) is released from all the rigour of law and is allowed

to function independently through its Board of Directors from

immediate effect.

9. The Adjudicating Authority will fix the fee of 'Interim Resolution

Professional', and the Appellant- Mr. Sharad Kesarwani, will pay the fees

of the 'Interim Resolution Professional', for the period he has functioned.

10. Liberty is given to the 'Operational Creditor' to issue a fresh

demand notice under section 8(1) at the address of the 'Corporate

Debtor' at Noida and another to Appellant-Mr. Sharad Kesarwani- in the

address as given in this appeal. After service of demand notice, it will be

open to the 'Corporate Debtor'/Appellant to submit reply under Section

8(2) and thereafter it will be open to the 'Operational Creditor' to proceed

Company Appeal (AT) (Insolvency) No. 272 of 2018 -5-

in accordance with law. The appeal is allowed with aforesaid

observation. However, in the facts and circumstances of the case, there

shall be no order as to cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 272 of 2018