TaxTMI 
TaxTMI 
TaxTMI 
2022 (1) TMI 1329
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....ector of the 'Corporate Debtor' Nexus Feeds Limited is the Appellant herein. Manjeet Bucha, IRP of Nexus Feeds Ltd. is the 1st Respondent. Hemamalini Traders, is the 2nd Respondent is a 'Operational Creditor' of the 'Corporate Debtor'. 3. The 'Corporate Debtor' is engaged in the business of manufacturing and marketing premium quality fish feed who has engaged number of fish feed suppliers and vendors for supply of distiller's dried grain with soluble (DDGS), a form of fish feed. 4. The 2nd Respondent is a proprietor firm engaged in the business of supplying and trading of 'DDGS' and other feed material. The 2nd Respondent has entered into business relationship with the 'Corporate Debtor' for supply of 'DDGS', soya doc, mustard doc and feed supplement since 2016 onward and have been regular supplier. The 2nd Respondent on the aggregate basis of the total invoices raised has supplied for Rs. 8,81,50,278/- out of which there were some credit notes for an amount of Rs. 35,16,195/-. The 'Corporate Debtor' used to make payment to the 2nd Respondent on an 'on account' basis from time to time till 12.09.2018 and has paid amount of Rs. 7,18,74,496/- against total outstanding amount of R....
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.... the 'Adjudicating Authority' on 22.07.2021. 10. The Learned Counsel for the Appellant also stated that there were pre-existing disputes and ignoring all these facts, the 'Adjudicating Authority' erred in giving ex-parte 'impugned order' dated 04.08.2021 in gross violation of principals of natural justice and audi alterum partum. The 'Adjudicating Authority' also failed to consider the prevailing covid situations. The Learned Counsel for the Appellant further stated that aggrieved by this ex-parte order, the 'Appellant/ the 'Corporate Debtor' moved an application before the 'Adjudicating Authority' for setting aside the ex-parte order which came for hearing on 13.08.2021. However, the 'Adjudicating Authority' did not consider the same. The Learned Counsel for the Appellant stated that reason for non appearance before the 'Adjudicating Authority' were mentioned in I.A. No. 424 of 2021 filed seeking setting aside of the ex-parte order before the 'Adjudicating Authority'. The Learned Counsel for the Appellant stated that reason cited in I.A No. 424 of 2021 were many fold including 'Appellant was did not receive notice, if any, due to non receipt or misplaced of the same by the employ....
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....p.a. 17. The Learned Counsel for the 2nd Respondent stated that the he did not receive any legal notice of the civil suit dated 25.09.2018 and no clean/legible copy of the said notice along with proof of service was served on the 2nd Respondent and he is trying to mislead the 'Tribunal'. The Learned Counsel for the 2nd Respondent further stated that similarly the 2nd Respondent was kept in dark regarding baseless civil suit before Civil Judge Bhimavaram, Andhra Pradesh and was made aware much later after initiation of proceeding under Section 9 application. The Learned Counsel for the 2nd Respondent vehemently opposed plea of so-called pre-existing dispute which are not genuine and merely illusionary and cannot be consider in view of the ratio of decision of Apex Court held in Mobilox Innovations Pvt. Ltd. Vs. Kirusa Software Pvt. Ltd. 18. The Learned Counsel for the 2nd Respondent stated that 'Demand Notice' dated 18.07.2020 was delivered as evidence by receipt of 'Blue Dart'. 19. The Learned Counsel for the 2nd Respondent mentioned that he made two attempts to serve the copy of the petition in CP (IB) No. 389/2020 on 31.12.2020 and on 30.01.2021, however both were returned as ....
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....otice or process if to be served physically may be served in any one of the following modes as may be directed by the Tribunal; - (a) by hand delivery through a process server or respective by authorised representative; (b) by registered post or speed post with acknowledgment due; (c) or service by the party himself. (3)Where a notice issued by the Tribunal is served by the party himself by hand delivery, he shall file with the Registrar or such other person duly authorised by the Registrar in this behalf, the acknowledgment together with an affidavit of service and in case of service by registered post or by speed post, file with the Registrar, or Such other person duly authorised by the Registrar in this behalf, an affidavit of service of notice alongwith the proof of delivery. (4) Notwithstanding anything contained in sub-rules (1) and (2), the Tribunal may after taking into account the number of respondents and their place of residence or work or service could not be effected in any manner and other circumstances, direct that notice of the petition or application shall be served upon the respondents in any other manner, including any manner of substituted service, as ....
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....sed on averments made by the 2nd Respondent herein/ the 'Applicant' therein, that despite notice served upon the 'Corporate Debtor', there is non appearance on behalf of the 'Corporate Debtor' and even earlier after delivery of 'Demand Notice' neither any reply was sent by the 'Corporate Debtor' nor any payment was made and no dispute was raised between 10 days on receipt of 'Demand Notice'. * This 'Appellate Tribunal' observes from the record available by the 2nd Respondent in his counter filed vide Diary No. 1074 dated 20.12.2021 that the 'Demand Notice' dated 18.07.2020 was issued to the 'Corporate Debtor' and the same was confirmed as delivered by 'Blue Dart' and date of delivery is stated to be 20.07.2020 at 12.36 hours. Similarly, this 'Appellate Tribunal' observes that the 2nd Respondent has filed detailed 'memo for proof of submissions of unclaimed delivery served on the Respondent dated 23.07.2021' where following documents were attached as a proof for submission of delivery. S. No. Particulars 1. Memo for Proof of Submission of Unclaimed Delivery of the Petition served on Respondent. 2. Copy of the envelope containing the unclaimed petition send by Speed Post Recei....
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....nt 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 the notice of the operational creditor - (a) existence of a dispute, 1 [if any, or] record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute; (b)the 2 [payment] of unpaid operational debt- (i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or (ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor. Explanation. - For the purposes of this section, a "demand notice" means a notice served by an operational creditor to the corporate debtor demanding 3 [payment] of the operational debt in respect of which the default has occurred. 9. Application for initiation of corporate insolvency resolution process by operational creditor. - (1) After the expiry of the period of ten days from the da....
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....tional creditor and the corporate debtor, if - (a) the application made under sub-section (2) is incomplete; (b) there has been 1 [payment] of the unpaid operational debt; (c) the creditor has not delivered the invoice or notice for payment to the corporate debtor; (d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or (e) any disciplinary proceeding is pending against any proposed resolution professional: Provided that Adjudicating Authority, shall before rejecting an application under subclause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the Adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section." * From the record available, it is noticed that the 'Demand Notice' dated 18.07.2020 was sent to the registered office of the 'Appellant' with claim for unpaid 'Operational Debt' of principal amount of Rs. 1,44,63,630/- along with interest from 16.011.2018 to 14.08.2019 of Rs. 26,0....