Sugan Choudhary vs Khandelwal Busar Industries Pvt. Ltd. & ...

IN THE MATTER OF: Sugan Choudhary ...Appellant Vs. Khandelwal Busar Industries Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant: - Mr. Brijender Chahar, Senior Advocate with Mr. Ashutosh Kumar, Mr. Pulkit Agarwal and Mr. Palav Agarwal, Advocates.

For Respondents: Mr. Rakesh Kumar, Mr. Hitesh Raj Singh and Mr. Aashish Khattar, Advocates.

Mr. Pankaj Khaitan, IRP.

O R D E R

08.03.2019─ The Respondent- 'M/s. Khandelwal Busar Industries

Private Limited'- ('Operational Creditor') filed an application under

Section 9 of the Insolvency and Bankruptcy Code, 2016 ("I&B Code" for

short) for initiation of the 'Corporate Insolvency Resolution Process'

against 'M/s. Mansfield Cables Company Limited'- ('Corporate Debtor').

The Adjudicating Authority (National Company Law Tribunal), New

Delhi (Court No. IV), by impugned order dated 15th May, 2018, having

admitted the application, the Appellant- Director of the 'Corporate

Debtor' has challenged the same.

2. The main plea taken by the Appellant is that the demand notice

under Section 8(1) was issued by the 'Operational Creditor' on -2-

28th December, 2017 in its old address at 'Lajpat Nagar' whereas in the

meantime, the company had changed its address from 1st November,

2017 at the new address at 305, 3rd Floor, DLF Court Yard, Saket,

Delhi- 110017. In view of the same, the 'Corporate Debtor' could not

submit reply in terms of sub-section (2) of Section 8 and was not given

opportunity to settle the matter. It is further intimated that the parties

have settled the claim.

3. Mr. Rakesh Kumar, learned counsel appearing on behalf of the

'Operational Creditor' accepts that the notice was issued at the 'Lajpat

Nagar' address of the Company. He further submits that the parties

have settled the matter.

4. Mr. Pankaj Khaitan, the 'Resolution Professional' who appears in

person objected the prayer on the ground that in Form No. INC-22 the

'Corporate Debtor' has shown 'Lajpat Nagar' address from retrospective

date of 1st November, 2017. This Form No. INC-22 was filled up by the

'Corporate Debtor' in May, 2018. Therefore, according to him, the

'Corporate Debtor' is now showing a different address and the notice

was properly served in its proper address.

5. Pursuant to the direction of this Appellate Tribunal, the Appellant

has filed a supplementary affidavit enclosing the copy of the letter

addressed to the Registrar of Companies, Ministry of Corporate Affairs,

Company Appeal (AT) (Insolvency) No. 270 of 2018 -3-

4th Floor, IFCI Tower. By the said letter, the change of address of the

'Corporate Debtor' was with effect from 1st November, 2017 it was

intimated to the Registrar of the Companies, NCT of Delhi and Haryana

change address of 305, 3rd Floor, DLF Court Yard, Saket, Delhi- 110017

has been mentioned. In the said letter, no date has been shown but it

shows that the letter was received by the Company Registrar, NCT of

Delhi and Haryana on 7th December, 2017. Original copy of receipt has

been filed. Thus, we find that the change of the company address was

intimated to the Registrar of Companies prior to the date of issuance of

the demand notice under Section 8(1).

6. Mr. Pankaj Khaitan, submitted that there is no office situated at

the address shown by the 'Corporate Debtor' but he has taken

possession of the company at a different place. He wanted to produce

some photographs but they being not on record, we are not inclined to

deliberate on such issue. It is also informed that in absence of any

'Resolution Plan', the 'Resolution Professional' has moved before the

Adjudicating Authority to pass order of liquidation.

7. Having heard learned counsel for the parties, we are of the view

that the Appellant has made out a case of non-service of demand notice

on the 'Corporate Debtor', it having changed the Registered Office of the

company prior to the date of issuance of demand notice under Section

8(1).

Company Appeal (AT) (Insolvency) No. 270 of 2018 -4-

8. For the reasons aforesaid, while we set aside the impugned order

dated 15th May, 2018, make it clear that this order will not come in the

way of the other creditors to move before the competent forum/

authority if any amount is payable, after notice to the 'Corporate

Debtor'.

9. The 'Resolution Professional'- Mr. Pankaj Khaitan, submits that

he has been paid fee for Rs. 2 lakh per month as approved by the

'Committee of Creditors' and for the present month Rs. 2 lakh is

payable, apart from the actual expenses cost of 'Corporate Insolvency

Resolution Process' amounting to Rs. 3.99 which is pending

consideration before the 'Committee of Creditors'.

10. In the circumstances, we direct the 'Corporate Debtor' to pay a

total sum of Rs. 5.99 lakhs in favour of Mr. Pankaj Khaitan, 'Resolution

Professional' towards the rest of the fee and cost of Insolvency

Resolution within three weeks.

11. In effect, order (s), passed by the Adjudicating Authority 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 published in the newspaper calling for applications all

such orders and actions are declared illegal and are set aside. The

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application preferred by Respondent under Section 7 of the 'I&B Code'

is disposed of as withdrawn. 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. The appeal is allowed. No

cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice A.I.S. Cheema) Member(Judicial) Ar/g

Company Appeal (AT) (Insolvency) No. 270 of 2018