TaxTMI 
TaxTMI 
2019 (12) TMI 783
X X X X Extracts X X X X
X X X X Extracts X X X X
....ptember, 2019 under Rule 11 of National Company Law Tribunal Rules, 2016 read with Section 60(5) of Insolvency and Bankruptcy Code, 2016 praying therein that the order dated 5th September, 2019 might be recalled and set aside and the application of the Financial Creditor Oriental Bank of Commerce may be dismissed for lack of proper jurisdiction to this Tribunal. 3. The Applicant, a director of the suspended board of the Corporate Debtor hereinafter referred to as the Applicant has challenged the order of admission on the ground that the impugned order has been passed ex-parte without providing an opportunity to the Corporate Debtor to be heard; that the Corporate Debtor did not receive the copy of the application in spite of the requests having been made vide letter dated 11th February, 2019 to the Counsel for the Financial Creditor; and that the Financial Creditor had suppressed the fact that the Registered Office of the Corporate Debtor had changed from Kolkata to Odisha on 16th January, 2018 which was well within the knowledge of the Financial Creditor. 4. It is submitted that vide letter dated 18th September, 2019, the Appellant through its Director (the Applicant herein) had....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eceipt No. EW2740679291N from Park Street Post Office and finally a notice was published in two daily Newspapers viz., English daily "Indian Express" and Bengali daily 'Aajkal' on 30th April, 2019. 8. It is submitted that it is evident from the letter of the Corporate Debtor dated 11th February, 2019 that the Corporate Debtor was fully aware of the proceedings going under Section 7 of the Code and in spite of providing copy of the Application with all annexures from time to time even at their given address they did not receive, appear or contest the aforesaid proceedings. 9. It is submitted that the Corporate Debtor had availed loan facility from its Kolkata address, as reflected in its Board Resolution dated 5th May, 2011, 22 nd August, 2014 and demand notice dated 12th August, 2017 was also received by the Corporate Debtor at the Kolkata address. It is however, denied that the Financial Creditor had 107/1<8/2019 Pvt. Ltd. suppressed the fact that the Registered Office of the Corporate Debtor had been changed from Kolkata to Odisha on 16th January, 2018 or that the same was well within the knowledge of the Financial Creditor. 10. It is submitted that if the Corporate De....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d before this Tribunal on 14th May, 2019, it was found that an affidavit of service had been filed by the Chief Manager of the Financial Creditor but the same was found defective and returned to the Chief Manager of the Financial Creditor, who was present in person. On 26th July, 2019 it was directed that since the notice appeared to have been served but because no one appeared on behalf of the Corporate Debtor the matter was proceeded ex-parte against the Corporate Debtor and on the next date i.e. on 30th August, 2019 the matter was heard and orders were reserved. 15. In support of its contentions, the Ld. Sr. Counsel for the applicant referred to the copy of its master data filed along with its supplementary affidavit dated 14th October, 2019 and submitted that the registered address mentioned in the master data is of Odisha. The Ld. Sr. Counsel has also submitted and placed on record Certificate of Registration of Regional Director's order for change of State, according to which the change of registered office has been recorded and confirmed by an order of Regional Director passed on 15th January, 2019. The Ld. Counsel has also placed on record letter dated 22 nd June 2017 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....), wherein the Hon'ble Supreme Court of India has observed as under:- "12. It is well established position that waiver is an intentional relinquishment of a right. It must involve conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, a party could have enjoyed. It is an agreement not to assert a right. To invoke the principle of waiver, the person who is said to have waived must be fully informed as to his rights and with full knowledge about the same, he intentionally abandons them (See para 41 of State of Punjab (supra). There must be a specific plea of waiver, much less of abandonment of a right by the opposite party. " 19. During the course of argument the Ld. Counsel for the Financial Creditor submitted that on the date when this petition was filed, this Tribunal had the jurisdiction because the Cuttack Bench had not started functioning on that date. It started functioning on 18th March, 2019. The Ld. Counsel for the Financial Creditor referred to and relied upon the case of AIR 1966 SC 634, Bahrein Petroleum Co. Limited vs. P.J. Pappu and Another (SC), wherein the Hon'ble Supreme Court observed as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....otice from this Court was considered to be "some Income Tax Return documents". The deponent does not at all disclose as to when the envelope containing the dasti notice was ever opened. Further more, the ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant Company of the proceedings, prior to his surgery. Further more, Mr. Narayan appeared before the Income Tax Authorities to represent the Applicant Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. 14. Keeping in view the above-mentioned facts and circumstances, this Court is satisfied that the Applicant Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant Company chose to let the matter procee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ents like S. 21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the court to refer the matter to arbitration or of the arbitrator to render the award. It is clear, therefore, that the defendant is estopped from challenging the jurisdiction of the Bombay High Court to entertain the suit and to make the reference to the arbitrator. He is equally estopped from challenging the authority of the arbitrator to render the award. In our opinion this conclusion is sufficient to dispose of the appeal. " 24. The Financial Creditor has further relied upon the NCLAT judgment passed in the case of Alloys Industries vs. Raman Casting Private Limited, in Company appeal (AT) (Insolvency) No. 684 of 2018, wherein the Hon'ble NCLAT has observed as under:- "In view of aforesaid facts we hold that the Adjudicating Authority erred in rejecting the application under Section 9 on wrong presumption that demand notice is to be served on the Registered Office of the Corporate Debtor and not on Corporate Office (Industrial Area Office h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gth, we are of the considered view that since the Corporate Debtor had been issued various notices and was admittedly served by e-mail and had even written to the representative of the Financial Creditor about the receipt of the email, it could have appeared before this Tribunal and demanded a copy of the application and annexures thereon from the Financial Creditor or from the Tribunal. But, no such attempt was even made by the Corporate Debtor which clearly reflects that the Corporate Debtor had been watching the proceedings till the date of admission of the petition and immediately thereafter filed the present application on 27th February, 2019 challenging the order of admission on the ground of territorial jurisdiction. 29. It is worthwhile to mention that when the application was filed by the Financial Creditor, this Tribunal had the necessary territorial jurisdiction to hear and entertain the present application and the Financial Creditor as well as the registry of this Tribunal had repeatedly tried to send notices by various modes to serve the Corporate Debtor and the notices were sent by registered speed post and by e-mail and could be deemed to have been served, even when....