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2018 (4) TMI 602 - AT - Insolvency and BankruptcyNo service of notice on the Corporate Debtor under Rule 4(3) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 - Held that - Adjudicating Authority issued notice recording the date of hearing of the application was not served on the Corporate Debtor and returned unserved. It is also not disputed that the address of the Corporate Debtor had been changed much prior to filing of the application under Section 7 of the I&B Code ; therefore, it is not clear as to how the Financial Creditor filed proof of service of notice on the Corporate Debtor . The notice was served on one of the Directors, but such service of notice on one of the Directors cannot be treated as service of notice on the Corporate Debtor , which was the party respondent and not an individual Director. In view of the fact that the rules of natural justice have been violated - Set aside the impugned order dated 22nd December, 2017 which is set aside and remit the case to the Adjudicating Authority, Ahmedabad Bench for fresh decision.
Issues: Violation of natural justice, failure to serve notice, change of address, maintainability of application under Section 7 of I&B Code
The judgment pertains to an appeal filed by the Director of a company against an order passed by the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016 (I&B Code). The issue raised was the failure to serve notice on the Corporate Debtor, which led to a violation of natural justice. The Appellant contended that no notice was served on the Corporate Debtor as required under Rule 4(3) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. It was argued that the address of the Corporate Debtor had been changed prior to the application, but notices were sent to the old address. Additionally, the Appellant claimed that there was no default of debt, making the application under Section 7 of the I&B Code not maintainable. The Respondent, a Financial Creditor, countered by stating that proof of service of notice of the hearing had been filed. However, the Adjudicating Authority's notice was not served on the Corporate Debtor and was returned unserved. The Respondent acknowledged the change in the Corporate Debtor's address but questioned how the proof of service was filed. The Respondent argued that serving notice on one of the Directors did not constitute service on the Corporate Debtor. Moreover, there was no evidence that the notice under Rule 4(3) of the Insolvency and Bankruptcy Rules was forwarded or served on the Corporate Debtor. The Tribunal found that the rules of natural justice were violated due to the failure to serve notice properly. The Adjudicating Authority had acknowledged that the notice of the hearing was returned unserved. As a result, the impugned order admitting the application under Section 7 of the I&B Code was set aside, and the case was remitted to the Adjudicating Authority for a fresh decision. The Appellant was directed to ensure the Corporate Debtor's representation at the next hearing, emphasizing that the Corporate Debtor should appear through its counsel or representative and not the Resolution Professional. The Financial Creditor was also instructed to appear on the specified date for further proceedings. In conclusion, the appeal was disposed of with the above observations and directions, with no costs imposed on either party. The judgment highlighted the importance of adhering to procedural requirements, particularly regarding the service of notices and maintaining the principles of natural justice in insolvency proceedings under the I&B Code.
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