TaxTMI 
TaxTMI 
2022 (5) TMI 714
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....agement of the Corporate Debtor was completely unaware of the proceedings and therefore was unable to present its case before this Tribunal. No advance service was also made to the Corporate Debtor by the Operational Creditor prior to filing the main Company Petition. Emails from the registry, notifying the date, while now found, were not viewed prior to the date. b) The Operational Creditor has instituted the Petition and proceeded with completely mala fide intentions and has obtained an ex-parte order in its favour. The Corporate Debtor came to know of the proceedings when on 23.03.2022, the Resolution Professional arrived at their office, which was a complete shock. c) If the Applicant was made aware of the captioned proceedings, it would have certainly approached this Tribunal to represent itself. The Applicant did not attempt to avoid any legal proceedings and it is incorrectly noted that the Applicant has refused service of notice in any manner whatsoever. Perhaps, the notice was not received, as the office of the Applicant was closed due to Covid-19 pandemic. In fact, the Corporate Debtor responded to the notice under Section 8 of the Code, vide reply dated....
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....ended and the IRP takes over the Management of the Corporate Debtor. Therefore, the Suspended Management has now filed the IA by cooking up absolutely false stories that "it seems as the office was closed on account of Covid". The Corporate Debtor is a construction Company and is undertaking construction activities day and night. All the offices and Companies are functioning normally and there are no more Covid restrictions as is falsely claimed by the Suspended Management. A caveat was filed by the Operational Creditor before the NCLAT after the admission of the Petition, Therefore, on 24.03.2022, with a clear and dishonest intention to avoid the Caveats, this Application is filed instead of approaching the NCLAT. In their enthusiasm to file a set aside Petition, the Suspended Management has also committed perjury by making false statements while on oath. They have made wrong submissions that they had no advance notice of the Company Petition prior to filing and that they are completely unaware of the proceedings. All the actions of the Suspended Management, including the blatant lies in the above IA, would only prove that it is not even apologizing to the Tribunal about their ada....
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....nd everyone was advised and encouraged to work from home as far as possible. Only very limited physical functioning of the office with skeleton staff, comprising of cleaning staff, was allowed, only certain employees who were authorized by the Corporate Debtor had limited access, only to obtain necessary urgent files and documents. Thereafter, it is only from early March onwards that the physical functioning of the registered office of the Corporate Debtor Company has resumed to some extent. It is in the aforesaid circumstances, unsuccessful attempted service of Insolvency Petition was made, which cannot be construed as affective service. The Corporate Debtor also has never been served the notice via email by Respondent No. 1. The emails from the Registry, notifying the date of hearing were inadvertently missed and not viewed prior to the date. With respect to the aforesaid, the Supreme Court is cognizant and has taken judicial notice of how the Covid-19 pandemic, especially the period during and around the three waves, has barely affected the normal functioning of all the offices and courts of the Country and suo-moto took cognizance of the difficulties faced by the litigants and ....
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....s took place in the office of the Corporate Debtor, which are execution and presentation of documents which were registered on 19.02.2022. The Senior Counsel then sought time to get instructions with regard to the said transactions and later the affidavit dated 11.04.2022 got to be filed, stating that the office was largely closed and only certain employees who have been authorized by the Corporate Debtor had limited access only to obtain necessary and urgent files & documents. This submission is in response to the document which evidenced certain transactions which have taken place presumably at the office of the Corporate Debtor. The affidavit however, does not state that no transactions took place on 18.02.2022. It appears that in order to explain the fact of the transactions having been taken place on 18.02.2022, the affidavit states that the office was not completely closed down but few people were given access. The affidavit shows that only very limited functioning of the office, with skeleton staff, mainly comprising of cleaning staff, was allowed. It amounts to admitting that though most of the staff present on 18.02.2022 would have been cleaning staff, some other staff who....
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....ice under Section 8 would be a jurisdictional notice, on the basis of which the Tribunal has to pass an order. 9. The Counsel for the Applicant, by reading Section 8 (2) of IBC contends that the Corporate Debtor shall issue notice within a period of 10 days of receipt of the demand notice and hence till lapse of 10 days from the date of receipt of the demand notice by the Corporate Debtor, the Tribunal would not have jurisdiction. Hence the suppression of the reply notice issued to the demand notice would vitiate the proceedings. Sections 8 & 9 of IBC can be read together in order to understand as to when the right would accrue to Respondent No. 1/Operational Creditor to file an application under Section 9 of IBC. Section 8 of IBC is as follows: "(1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. (2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to....
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....Limited & Ors. In the said case, the ground taken was non-service of the notice and the track record showing the delivery of notice upon the Corporate Debtor. It was held in those circumstances, that since admittedly the factum of tracking report, confirming delivery of notice upon the Corporate Debtor was not disputed and no allegation in the nature of fabrication, forgery or fraud came forth from the Corporate Debtor, the Adjudicating Authority was justified in declaring service of notice having been effected on the Corporate Debtor. It was also observed that since, the Corporate Debtor did not put in his appearance and raise any issue in regard to maintainability of the Application, it is futile on the part of the Appellant to contend that the Adjudicating Authority did not decide the issue of maintainability of the application. It was further observed that the Adjudicating Authority is obligated under law to issue a limited notice to the Corporate Debtor at the pre-admission stage of the Application filed under Section 9 of the IBC and it shall pass an order of admission on being satisfied about completion of application and there being an unpaid operational debt and default in....
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....2021, could have been drawn in respect of the said notice, since, no document in support of the proof of the contents of the notice dated 06.01.2022 also came forth. 14. A judgment of the NCLT, Division Bench, Chennai in IA/707/CHE/2021 in IBA/140/2020 between Ramji Venkatraman (Suspended Director of Ad Mart Pvt. Ltd.) vs. M/s. ACI Wonderwood Products & Another, was relied upon wherein it was held that ex-parte order can be set aside only on the ground of the notice not being duly served, or that they were prevented by any sufficient cause from appearing in the proceedings and the refusal to receive the notice cannot be stated as a sufficient cause for the Corporate Debtor for non-appearance. 15. A judgment of the Supreme Court in 2021 SCC OnLine SC 828 between Vishwabandhu vs. Sri Krishna & Another, was relied upon in support of the contention that as per Section 27 of the General Clauses Act, 1897, a presumption has to be drawn that service of notice has been effected when it is sent to the correct address by registered post and if a notice is returned with a postal endorsement as refused, it has to be deemed as proper service. 16. In answer to the contention raised with....
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....r recorded that service of notice on the Corporate Debtor was done through speed post and also through an email dated 28.02.2020. Considering that the appellant is silent about the service of notice which was effected by email, the order setting the Corporate Debtor ex-parte, is set aside. 18. The third judgment is rendered by the High Court of Calcutta, between Credence Trexim Private Limited & Ors. vs. The Registrar of Companies, the facts of which reveal that there was a suppression of material fact. Considering that if a plea is taken that material is suppressed or fraud practiced, the order can be recalled, the order therein was recalled. In this case, there is no plea in the application that the order was obtained by playing fraud on the court. Hence none of the above judgements would answer the question, whether the merits of the case, while hearing the application seeking to set aside the order, setting the Applicant ex-parte, can be gone into. 19. The Counsel for the Respondent relied on a judgement of NCLAT in CA (AT) (Insolvency) No. 54 of 2021 between Ravinder Kumar Kalra vs. Ricela Health Foods Limited & Ors., in support of his contention that the merits of the c....