TaxTMI 
TaxTMI 
2022 (3) TMI 699
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....Animesh Bisht, Ms. Madhavi Khanna, Mr. Shubhankar Jain, Advocates JUDGMENT ASHOK BHUSHAN, J. This Appeal has been filed against the judgment and order dated 01.02.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Court No.5, Mumbai Bench by which order the Adjudicating Authority on Application under Section 95 Sub-section (1) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'Code') filed by the Union Bank of India directed the Resolution Professional (RP) to submit report under Section 99 of the Code for acceptance for rejection of the Application. The Appellant aggrieved by said order has come up in this Appeal. 2. Few facts in the case need to be noted for deciding this Appeal ar....
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....re the Adjudicating Authority that Demand Notice issued by the Bank having not been served on the Appellant Application need not be entertained. (vii) The Applicant Bank, who is Respondent before us, contended that Demand Notice under Rule 7 of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (hereinafter referred to as '2019 Rules') has been duly served by post at the residential address of the Appellant which was received by adult member of the family of the Appellant i.e. his nephew Mr. Karthik Wadhawan, therefore service is complete and Application filed under Section 95 be entertained. (viii) The Adjudicatin....
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....n Professional to submit report under Section 99. Learned counsel for the Appellant contends that notice on the Appellant was required to be served as per provisions of Order 5 Rule 24 of the Civil Procedure Code. 4. Counsel for the Respondent, Shri Raunak Dhillon, refuting the submissions of the Appellant contends that Demand Notice was served on the Appellant as per requirement of the 2019 Rules. Notice was sent by India Post on the last known address of the Appellant which was duly received by the nephew of the Appellant. Hence, service is complete. It is submitted that 2019 Rules does not require any personal service on the Appellant. Learned counsel for the Respondent submits that provisions of Order 5 Rule 24 of the Civil Procedure....
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.... on the guarantor demanding payment of the amount of default, in Form B. (2) The application under sub-section (1) of section 95 shall be submitted in Form C, along with a fee of two thousand rupees. (3) The creditor shall serve forthwith a copy of the application referred to in sub-rule (2) to the guarantor and the corporate debtor for whom the guarantor is a personal guarantor. (4) In case of a joint application, the creditors may nominate one amongst themselves to act on behalf of all the creditors." 8. Rule 7 Sub-rule (1) provides that Demand Notice under Section 95 (4) be served on the Guarantor regarding payment of amount of default, in Form B. 9. In the present case, Demand Notice as contemplated unde....
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....s, including registered post, speed post, courier or electronic form. The proviso of 3(g) contemplate the situation where a document cannot be served in any of the modes, it shall be affixed at the outer door or some other conspicuous part of the house or building in which the addressee ordinarily resides or carries on business or personally works for gain. The statute provides a particular manner of service of notice. Demand Notice is to be served at house or building in which the addressee ordinarily resides. In the present case, proviso to Rule 3(g) was not resorted to since the Notice dated 07.10.2020 was sent and received on 13.10.2020. The Adjudicating Authority in impugned judgment after considering the submissions has come to the co....