The Sandesh Ltd vs Realm Media Solutions Pvt. Ltd

IN THE MATTER OF: The Sandesh Ltd. .....Appellant Vs. Realm Media Solutions Pvt. Ltd. ......Respondents

Present : For Appellant: Mr. Yashvardhan with Ms. Smita Kant and Mr. Mohit D.Ram, Advocates

14.03.2019 - The Appellant - 'Sandesh Limited' ('Operational Creditor') issued

Demand Notice u/s 8(1) on 21.07.2017 at the registered office of Realm Media

Solutions Pvt. Ltd. ('Corporate Debtor'). No reply being received, the Appellant

filed application u/s 9 of the Insolvency & Bankruptcy Code (I&B Code). The

Adjudicating Authority (National Company Law Tribunal), Special Bench, New

Delhi by impugned order dated 13.03.2018 rejected the application on the

ground that there is no proof that the notice was delivered to the 'Corporate

Debtor' at the registered office referring the provision of Insolvency and

Bankruptcy Code of India (Appellate Authority) Regulation, 2016. It was held

that as per Regulation 5, the 'Operational Creditor' should have delivered the

...contd./

Company Appeal (AT)(Insolvency) No.222 of 2018 -2-

'Corporate Debtor' the documents which has not been delivered in the matter

shown therein.

2) Learned Counsel appearing on behalf of the Appellant submitted that the

Demand Notice in terms of Section 8(1) was issued in accordance with the

provision of aforesaid Regulation. If the 'Corporate Debtor' failed to submit the

reply under sub-section (2) of section 8, the application of 'Operational Creditor'

cannot be rejected on the ground of non-enclosure of such reply. It is further

submitted that the 'Corporate Debtor' all the time refused to accept the Demand

Notice issued u/s 8(1).

3) In the present appeal, notice was issued by this Appellate Tribunal on

Respondent ('Corporate Debtor') but they returned undelivered. Fresh notice

was also issued in its present and correct address but that has also been

returned unserved. In this background, the Appellant was allowed to make

paper publication(s) in two newspapers, one in English ('Times of India'), New

Delhi / NCR edition and another Hindi ('Hindustan'), New Delhi / NCR edition

intimating the Respondent about the next date of hearing.

4) Publication of notice on Respondent has also been made in aforesaid

newspapers copies of which has been enclosed. Inspite of publication of notice

in two newspapers, the Respondent do not chose to appear. This shows that the

Company Appeal (AT)(Insolvency) No.222 of 2018 ...contd./ -3- Respondent is deliberately avoiding the service of notice and the stand taken by

the Appellant that the Respondent is deliberately avoided to receive the Demand

Notice u/s 8(1) of the Insolvency & Bankruptcy Code (I&B Code) is correct.

5) In the circumstances, we hold that the Demand Notice u/s 8(1) of the

Insolvency & Bankruptcy Code (I&B Code) deemed to have been served on the

Respondent and thereby the application u/s 9 was maintainable.

6) We accordingly, set aside the impugned order dated 13.03.2018 and remit

the case to Adjudicating Authority (National Company Law Tribunal), Special

Bench for admission of the application u/s 9 after notice to the Respondent. If

the notice is not served, the Appellant will publish fresh notice in two newspapers

as earlier ordered by this Appellate Tribunal and after hearing the parties, the

Adjudicating Authority will pass appropriate orders. However, inspite of such

service of notice or publication of notice, if the Respondent do not chose to

appear, the Adjudicating Authority will admit the Section -9 application. The

appeal stands disposed of with aforesaid observations and directions. No cost.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A. I. S. Cheema] Member (Judicial) ss/gc

Company Appeal (AT)(Insolvency) No.222 of 2018