V. Chiranjiv & Co vs Wiltan Telmag (India) Pvt. Ltd

V.Chiranjiv & Co. ...Appellant

Versus

Wiltan Telmag (India) Pvt. Ltd. ...Respondent

Present:

For Appellant : Mr. Arunav Patnaik, Ms. Anandini Kumar, Advocates

For Respondents : Ms. Somya Yadav, Advocate for Respondent

ORDER

31.01.2019 The Appellant ('Operational Creditor') is aggrieved of

rejection of his petition filed u/s 9 of the Insolvency & Bankruptcy Code

('I&B' for short). In terms of impugned order dated 28.8.2018, the

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

Delhi held that the Demand Notice u/s 8(1) was not served and the

application u/s 9 was not maintainable.

Learned Counsel for the Appellant took plea that in spite of issuance

of Demand Notice u/s 8(1) which returned 'unanswered' because of closure

of 'regional office' as reported by the 'Postal Department'. Personal Demand

Notice was also sent to the Respondent but it was found closed. Notices were issued on Respondent by this Appellate Tribunal but it returned

unserved. Ultimately, the Counsel for the Appellant served the notice on

Shri Pradeep Gill, Whole Time Director of the Respondent Company- 'Wiltan

Telmag (India) Pvt. Ltd.' A copy of the paper book is also served. Ms.

Somya Yadav, Advocate appeared on behalf of the Respondent.

It was submitted by the learned Counsel for the Respondent that the

Appellant may be issued a fresh Demand Notice u/s 8(1) and in that case

the 'Corporate Debtor' will file reply in terms of Section 8(2). On the other

hand, according to the learned counsel for the Appellant, if fresh notice is

again issued, and thereafter it is filed then the matter may be barred by

limitation.

In the present case, Demand Notice as was issued u/s 8(1) on

13.01.2018, has been enclosed with the paper book as Annexure - 16. Now

it is available with the 'Corporate Debtor', therefore, it will be deemed to have

been served now.

In the circumstances, we allow the 'Corporate Debtor' to file reply u/s

8(1) in terms of section 8(2) within 10 days i.e. by 11th February, 2019.

Thereafter it will be open to the Appellant(s) to file fresh application u/s 9 in

Form 5, if the matter is not settled. In such case, the Adjudicating Authority

will decide the case on merit uninfluenced by the impugned order dated 28th

August, 2018. We make it clear that have not determined the case on merit. It will be open to the parties to settle the claim by 11th February, 2019 or

with Counsel thereafter.

The appeal stands disposed of with the aforesaid directions. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

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