TaxTMI 
TaxTMI 
2026 (3) TMI 35
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....s filed by the Suspended Director of the Corporate Debtor, namely, Harkar Developers Pvt. Ltd. under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') against the order dated 18.07.2023 passed in CP (IB) No. 162/MB/C-IV/NCLT/IBC/Sec 9/2021 by the NCLT, Court IV, Mumbai (in short 'the Tribunal') admitting the application filed under Section 9 of the Code by Mr. Ramdeo R. Agarwal/Operational Creditor for the total amount of Rs. 1,89,57,920/- and appointed Mr. Amit Chandrashekhar Poddar as the Interim Resolution Professional (IRP). 2. The facts captured by the Tribunal in the impugned order are that the OC / Respondent No. 1 filed the Company Petition under Section 9 on 10.02.2021 in which the total amount claimed as ....
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....he Court that the personal notice has been returned undelivered with an endorsement 'addressee left', therefore, the OC was directed to serve the CD through substituted services by way of publication which is alleged to have been completed on 17.12.2021. Since, no one appeared despite substituted services also, therefore, the CD was proceeded against ex-parte on 24.12.2021 and after hearing the OC exparte, the Court made the following observation in para 4 of the impugned order "4. The Operational Creditor has placed on record the copy of GST returns and TCS returns to prove the supply of goods to the Corporate Debtor. In the absence of any response from the Corporate Debtor, the matter placed on record shows that there exist....
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....pondent had been selling coal to the CD since 2016-17 and had continued to sell coal to CD till 10.03.2018. It was agreed between the parties that the goods were to be supplied by OC directly to Anand Distilleries Pvt. Ltd. (ADPL) and invoice were to be raised by OC on CD and the CD used to raise invoice on ADPL. It is further submitted that part payments were received sometimes by OC from the CD and sometimes on instructions of CD, ADPL also made direct payments to OC and the said amount was duly credited by OC in the account of CD but sum of Rs. 1,12,67,715/- remained outstanding apart from the agreed interest @ 24% i.e. Rs. 76,90,205/-. It is further submitted that demand notice dated 22.12.2020 was issued by the OC to the CD and sent to....
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....g to set aside the exparte order but the application was not pursued. It is also submitted that in the said application it has been admitted by the CD that "Respondent/CD has received the demand notice from the petitioner somewhere in the month June, 2021 and the respondent has replied the same." However, alleged reply to the notice was not filed alognwith application filed for recall of the exparte order. Besides this, it is also submitted that the Appellant had even appeared through his counsel on 01.11.2022. In this regard, the Tribunal has also recorded the presence. The said order is also reproduced as under:- The Court is convened through Video Conference. 1. Mr. Harsh Kesharia, Ld. Counsel for the Petitioner present....
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..... We have heard Counsel for the parties and perused the record with their able assistance. 14. The Conduct of the CD since the beginning is not above board because, firstly, it denied to have received the statutory notice issued under Section 8 but later on it admitted to have received the same in the application filed for setting aside the exparte order which was not even persued for the reasons best known to the CD. It is alleged that reply to the said notice was filed but the said reply was not annexed with the said application filed for recalling of the order of ex-parte passed against the CD. Besides this, the CD made all efforts to avoid receipt of notice issued by the Court, therefore, the Court had to pass the order of substitute....