TaxTMI 
TaxTMI 
2020 (10) TMI 329
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....e represented by their original status in the Company Petition for the sake of convenience. 2. The brief facts of the case are as follows: The Appellant, i.e. Gurusukh Vintrade Service Pvt. Ltd represented by Mr Prakash Kalash (Authorised Representative) filed the present Appeal against the Respondent No.1, Apeejay Surrendra Park Hotels Ltd., and Respondent No. 2 Umesh Chandra Sahoo, under Section 61(1) of the I&B Code. The Appellant is a company incorporated under the Companies Act, 1956 having its registered office at Maharshi Valmiki, Ward No.28, Telibandha, Raipur, and Chhattisgarh. 3. The Appellant has opened Hotel at Great Eastern VIP Road Chowk, Avanti Vihar, Raipur, Chhattisgarh. The Respondent No.1 had approached to the Appellant for providing technical services and pre-operation advice for launching Hotel and further for the operation and management services after the launch of the Hotel. The Appellant entered into the 'Management and Technical Service Agreement' from now on will be referred to as 'MTSA' with Respondent No. 1. As per the Agreement, the Respondent No.1 was responsible for the training of the staff. However, they failed to provide proper training t....
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....unication and telephonic conversations held between the Appellant and the Respondent No.1, even after filing of the Application by the Respondent No.1 before the Adjudicating Authority. However, the Respondent No.1/Operational Creditor never communicated to the Appellant about the filing of the petition U/S 9 of the Code. 9. It is submitted on behalf of the Appellant that there was a plausible pre-existing dispute between the parties, which was not brought to the notice of the Adjudicating Authority. Since the Appellant was not aware of the proceedings, they could not appear before the Adjudicating Authority, and an ex-parte impugned order has been passed. The corporate insolvency proceeding started against the Appellant /corporate Debtor. 10. The Respondent in his reply submitted that the Company Appeal filed by the Appellant is devoid of any merit and as such liable to be dismissed. 11. It is submitted that the Appeal is liable to be dismissed on the ground that the same is filed beyond 30 days from the date of passing of the impugned order which is beyond the statutory period as prescribed under Section 61(2) of the I&B Code. 12. The Respondent No.1 further submits t....
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.... submitted and denied that as per the Agreement, all the operating expenses, including taxes, were to be discharged by the Respondent No.1. It has never been agreed between the parties that the Respondent No.1 shall discharge the liabilities of payment of taxes. It is pleaded that even the word "tax" find no mentioned in the said Agreement. 19. Heard the arguments of the Learned Counsel for the parties and perused the record. 20. The Respondent contends that the Appeal is liable to be dismissed on the ground that the same is filed beyond 30 days from the date of passing of the impugned order, which is beyond the statutory period as prescribed under section 61(2) of the I&B Code. The impugned order dated 14th November 2019 and Appeal is filed on 05.12.2019, which within 30 days from the date of order. Thus Appeal is filed within the statutory period of Limitation as prescribed under Section 61(2) of the Code. 21. The Learned Counsel for the Appellant submits that the impugned order is liable to be set aside on the sole premise of the failure of compliance with the service procedure prescribed under Rule 5 of the Insolvency and Bankruptcy (Application to Adjudication Authori....
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....with notice for reason of insufficient address. Operational Creditor to publish notice an newspaper one English and one vernacular, having wide circulation in the area where the Registered Office of the Corporate Debtor situated and file affidavit-in-reply, service of notice. Matter to appear for further consideration on 20.08.2019." (verbatim copy) 24. Thus, it is clear that the Court notice issued against the Corporate Debtor could not be served on account of insufficient address; after that, the Adjudicating Authority passed an order of publication of notice in the newspaper. Based on the publication of notice in the newspaper, service was held sufficient, and the Court passed an order to proceed the case ex-parte against the Corporate Debtor. Thus, it is clear that before the publication of notice in the newspaper, no effort was not made for serving the notice through email. 25. The Hon'ble Supreme Court in case of Neerja Realtors (P) Ltd. Vs. Janglu2018 (2) SCC 649 has held that 'for ordering substituted service the Court is required to be satisfied that there is reason to be read that Defendant is keeping out of the way for the purpose of avoiding service or for any oth....
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.... appears that dispute was raised regarding the quality of services. On perusal of email dated 14th March 2019, it appears that the Corporate Debtor raised the issue regarding service rendered by the Operational Creditor. It also shows that the Corporate Debtor informed the operational Creditor of taking over the complete management in its own hands because of being dissatisfied with the services rendered by the Operational Creditor. All these correspondences are before issuance of demand notice. 29. Looking to such material above, it is quite clear that there was a pre-existing dispute regarding the operation of management and services provided by the Respondent No.1 before the issuance of the demand notice dated 21.05.2019 under Section 8 of the I&B Code. 30. The definition of the word dispute provided under the Code was well elaborated and explained by Hon'ble Supreme, in the case of 2018(1)SCC 353 Mobilox Innovation Pvt Ltd vs. Kirusa Software Pvt Ltd, in the following words: Para 40 "It is clear, therefore, that once the operational Creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the Application unde....
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....requires further investigation and the "dispute "is not a patently feeble legal argument or an assertion of fact, unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster." (emphasis in bold supplied) 31. In the present case, it is crystal clear that there was a pre-existing dispute, even though the Adjudicating Authority admitted the Application for initiation of Corporate Insolvency Resolution Process by the impugned order. 32. Thus the Appeal is allowed, and the impugned order dated 14th November 2019 passed by the Adjudicating Authority/National Company Law Tribunal in CP (IB) No.62/CTB/2019 is set aside. In effect, the order passed by the Adjudicating Authority appointing Interim Resolution Professional, declaring moratorium and all other order(s) passed by the Adjudicating Authority pursuant to impugned order and actions taken by 'the Resolution Professional 'is declared illegal and are set aside. The application preferred by the respondent No.1 under Section 9 of the I&B Code is dismissed. The Adjudicating Authority will now close the proceeding. 33. The Adjudicating Authority will fix the f....
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....ement fees but you are also aware of our financial situation Unit has other important tables ke Taves, PF, ESI and EMS, we are seriously trying to resolve the financial crisis and we assure you that the management fees also be regularized within short period. Prakash kalash GURUSUKH TRADE SERVICES (P) LTD. DIRECTOR Теле году L Document 3 1292019 Yahoo Mail-Information and discussion on the certain issues Annexure 7. 80 Information and discussion on the certain issues. From: [email protected] ([email protected] To: [email protected] [email protected] Date: Thursday, 17 January, 2009, 11:50 am IST Dear Mr. Dewan, Mrs Paul We would like to inform and discuss certain issues that since opening of the hotel we never got the appropriate GOP from the management site. There was some argument in 2017-18 that hotel has not BAR SPA, and GYM hence management was failed to reach the appropriate GOP But since May 2018 BAR and SPA are opened for operation then after also we are struggling for appropriate Turnover & GOP One thing is notable that the first year sale performance was bet....
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.... unfortunate that on the ground reality is inferior service, higher paid lower class employees and unjustified GOP Employees are switching jobs frequently no one wants to stay here and no one wants to join. Hotel is running without F&B manager, IT manager, while HR and Training manager cost is too high with poor performance, management is not able hire a decent F&B manager in two months. As mentioned due to very poor service hotel is facing customer dissatisfaction and consecutive complaints which is resulting revenue loss . There is very poor effort in sales compared to last year also. No visit and response from corporate since August is making hotel foriom hence need to write to you but there is no response from your side also Now constrainedly we are taking over the complete management in our hand until your response on the matter And are feeling that Zone by the Park is not able to run the property at all. Prakash Kalash Sent from Yahoo Mailon Android On Thu Jan 17, 2019 at 11:50, [email protected] wrote: Dear, Mr. Dewan, Mrs Paul. We would like to inform and discuss certain issues that, since opening of the hotel we never got the appropriate GOP ....