TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 1213
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....d. [2020] 9 Comp Cas-OL 1 44 (NCLT)). The present appeal has been filed by D. Sathish Babu claiming to be shareholder and director of the corporate debtor taking up the cause of the corporate debtor (appellant-in short). This appeal is against the order admitting section 9 application under the IBC. 2. The operational creditor-Optiemus in the application filed before Adjudicating Authority claimed Rs. 27,79,59,587.21 as outstanding against corporate debtor-Indus for the period February 25, 2015 to March 20, 2018 which relates to mobile handsets sold to the corporate debtor, and for the period April 1, 2015 to March 20, 2018 with regard to accessories. The operational creditor claimed that there were dues on this count which were not paid and there was default. The operational creditor-Optiemus claims that it is distributor of mobile handsets of Samsung brand and as per the arrangement, mobile sets were supplied to the corporate debtor-Indus. The operational creditor placed on record invoices as well as documents to show delivery of the goods. It is claimed that the goods were sold to corporate debtor-Indus and as per the arrangement between the parties, "delivery" was made to "Uni....
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.... mobile handsets and accessories were made to Univercell. Counsel added that MPS Telecom Retail P. Ltd., is wholly owned subsidiary (which is disputed by learned counsel for the operational creditor who claimed that it is not wholly owned) of Optiemus-operational creditor. It is argued that all assets including the goods which were delivered to Univercell have been, by an agreement, sold by Univercell to MPS Telecom Retail P. Ltd. (MPSin short). Thus, it is argued that the goods sold to the corporate debtor have landed up with the subsidiary of the operational creditor and thus liability is not there. There is, however, no dispute with regard to the fact that the asset purchase agreement between Univercell and MPS which is dated July 29, 2015 (page 83) is in trouble and already their dispute is before arbitrator. It is claimed by learned counsel for the operational creditor that the said agreement did not include stock transferred. 6. Case was put up before the Adjudicating Authority and it has also been argued before us that by deed of assignment dated April 7, 2015 (page 56) which was a document between the corporate debtor-Indus and MPS Telecom, the Intellectual Property Right....
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....building in which the office of the corporate debtor is situated is predominantly in possession of the operational creditor and only one room in the building is in possession of the corporate debtor. It is thus claimed that although section 8 notice was duly addressed and sent and the operational creditor has shown tracking report of delivery, still it is the case of the corporate debtor that the notice was not actually served on the corporate debtor. It is argued that section 8 notice is mandatory to invoke section 9 proceedings and thus service of notice only on the corporate debtor requires to the proved and the same is not proved. 9. Learned senior counsel for the appellant claims that for such reasons, section 9 application should not have been admitted by the Adjudicating Authority. 10. Learned counsel for the operational creditor submitted that the present matter is admitted case of sale of mobile handsets and accessories to the corporate debtor which under the arrangement between the parties, were delivered to Univercell. It is argued that goods sold to corporate debtor is not in dispute. The corporate debtor is liable to pay when there is default. The argument is that th....
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....ten on the front of the office along with CIN number of the corporate debtor. Counsel referred to section 27 of the General Clauses Act to submit that when the notice has been duly addressed and sent, service of notice is presumed. Reference has been made to page 136-the tracking report from Blue Dart as well as page 137-the postal receipt and page 138-the tracking report from website of the Department of Posts, Ministry of Communications which shows that the item was delivered at the given address. 13. Having heard counsel for both sides, we first dispose of the objections with regard to service of notice. As the documents just referred above by learned counsel for the operational creditor show, section 8 notice item was delivered not only by Blue Dart but also by the Postal Department. There is no dispute that the address of the notice was proper address of the registered office of the corporate debtor. The operational creditor did what was expected from it under the law and corporate debtor merely by putting up hands and saying that "I did not receive", would not be sufficient. The Adjudicating Authority also dealt with this aspect and found that notice was duly served. We also....