TaxTMI 
TaxTMI 
2021 (12) TMI 907
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....kruptcy Code, 2016 (for short IBC) was dismissed. 3. The facts giving rise in the instant Appeal are as under: i) The Appellant (Operational Creditor) is a Company incorporated under the provisions of the Companies Act, 1956 and is a recognized stock exchange duly recognised by the Central Government/Securities and Exchange Board of India ("SEBI") under the provisions of the Securities Contracts (Regulations) Act, 1956 ("SCRA"). The appellant is constituted for the purpose of assisting the business of buying, selling or dealing in securities of the companies which has been granted listing permission by the Appellant. ii) The Appellant as well as the companies listed on the Appellant and the constituents/investors dealing in the said listed companies through member brokers are governed by Securities Contracts (Regulation) Rules, 1957, SERI (Listing Obligations and Disclosure Requirements) Regulations, 2015 ("LODR Regulations"), the Rules, Bye-laws and Regulations, 1957 of the Appellant ("Exchange") (as amended from time to time) and circulars/notices issued by SEBI/the Exchange from time to time. iii) Further case is that as per Section 21 of the SCRA and as per the requirements....
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....der Rule 5 of the IBC, 2016 calling upon the Respondent to make good the said operational debt and in the event of existence of dispute with respect to the amount of the unpaid operational debt, required the Respondent within 10 days of receipt thereof, to intimate the Appellant regarding pendency of any proceedings in relation to such dispute filed before the receipt of the Demand Notice failing which Corporate Insolvency Resolution Process would be initiated. ix) The aforesaid Demand Notice dated 15.03.2019 was dispatched vide speed post service and addressed to the registered address of the Respondent and also sent through email as available on the website of the MCA as well submitted by the Respondent originally to the Appellant, for payment of Rs. 10,66,886/-. However, the Respondent refused to acknowledge such service and the Demand Notices that were sent to both the aforesaid addresses were returned undelivered bearing endorsements 'not delivered refused' and 'not delivered addressee left without instructions'. The Appellant, due to the fact that the Respondent failed to satisfy and submit to the Appellant debt that was duly payable and continuing, instituted a Petition und....
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.... Ld. Adjudicating Authority has while observing that date of default in Form-5, Part IV in clause 2 is not reflected making the Form-5 incomplete, proceeded to calculate due date as per the said Form to be 01.04.2015, thereby ignoring the categorical mention of the same under date of default as 01.04.2015 till as of date in the Form 3 as also in Part IV of the Petition. However, the Ld. Adjudicating Authority has further cast doubts on the Listing Agreement entered into between the Appellant and Respondent on account of change of name of Respondent from M/s. Kosha Cubidor Containers Ltd. to M/s. KCCL Plastic Ltd. in the year 2012 and held it not to be a valid agreement without appreciating the fact that M/s. Kosha Cubidor Containers Ltd. and M/s. KCCL Plastic Ltd. were undoubtedly the same entity and Respondent continued to make payments Towards ALF under the new name and the CIN remained unchanged as L67120MH2005PLC155188. 10. It is further submitted that the Appellant relied on an order of this Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 472 of 2018 'B.S.E. Ltd. Vs. Neo Corp International Ltd. dated 05.04.2019' wherein paragraphs 2 to 6 are read as hereunder: "2....
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....he impugned order, the Respondent (Corporate Debtor) also not appeared before the Ld. Adjudicating Authority. 14. The Ld. Adjudicating Authority has taken note of the fact that the Demand Notice issued under Section 8 of the IBC on 15.03.2019 which was sent through Registered post on 19.03.2019. However, the same was returned with a postal remark "Not Delivered Addressee Left without instructions". The Applicant/Appellant has also issued Demand Notice through email on the same date demanding the arrears of the Annual Listing Fee. However, no dispute is raised by the Respondent. 15. Further, impugned order it transpires that admittedly, the Appellant received the last payment on 31.05.2013 amounting to Rs. 44,944/- for the Financial Year 2013-2014. However, the Appellant in Form -5 has stated that debt fell due on 01.04.2015. Further, the Ld. Adjudicating Authority has also perused page 12, at para-2.10 of the petition wherein the Respondent has made payment of Annual Listing Fee to the Applicant/Appellant till Financial Year 2013-2014 only and the last payment was received on 31.05.2013 for an amount of Rs. 44,944/-. Thereafter, the Respondent (Corporate Debtor) did not pay any a....