TaxTMI 
TaxTMI 
2020 (10) TMI 329
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....he 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 to the hotel staff. They were posting wrong revenu....
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....ellant 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 that the Appellant had the sufficient knowledge of initiation of pro....
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....cluding 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 Authority) Rules, 2016. It is submitted that the prescribed mode of service as per Rule 6(2)....
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....er 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 other reason, the summons cannot be served in an ordinary way. Thus, while making that Order, Court must....
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....19, 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 under S.9(5)(2)(d) if notice of dispute has been received by the operational Creditor or there is a record of dispute in the info....