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2022 (10) TMI 248 - Tri - Insolvency and BankruptcyService of Notice of the Company Petition by the Respondent/Financial Creditor or not - Principles of natural justice - petitioner was set aside ex-parte - seeking to provide an opportunity to file its counter and contest the Application - HELD THAT - Any notice or process to be issued by the Tribunal may be served by post or at the email address as provided in the petition or the application or the reply. It is the admitted case of the financial creditor that the notice taken pursuant to the direction of this Tribunal returned on 04.05.2022 with the postal endorsement No such person in the Address . In so far as the purported email said to have been sent to the corporate debtor is concerned, no record or an affidavit of the Company Petitioner has been filed confirming the delivery of the purported email. Thus, a clear case of non-service notice of Company Petition on the Corporate debtor/petitioner stands established. There are force in the submission of the Ld. Counsel for the Applicant that the Applicant was not duly served as mandated under the rule referred supra, besides satisfied that Applicant Corporate debtor was not duly served of the notice in the Company Petition. Hence it is a fit case to invoke the power of this Tribunal under Rule 49 R/W Rule 11 of NCLT Rules. Therefore, in the interest of justice, this application is allowed by setting aside our order dated 18.07.2022. Application allowed.
Issues:
- Whether the Petitioner/Corporate Debtor was not duly served the Notice of the Company Petition by the Respondent/Financial Creditor? Analysis: 1. The Corporate Debtor filed an application seeking to set aside an order where they were set ex-parte due to alleged non-receipt of notices from the Financial Creditor. The Corporate Debtor claimed the address was purposely mentioned wrong by the Respondent to set them ex-parte. 2. The Financial Creditor contended that all communications were sent to the Registered Office and email id as per the master data from the MCA website. The Financial Creditor argued that the notice was deemed served as it was returned with the postal endorsement "No such person in the Address." 3. The Tribunal referred to NCLT Rules regarding ex-parte hearings and the process to set aside such orders if the notice was not duly served. The Corporate Debtor claimed they were not served notice and learned about the proceedings through third parties, prompting them to file the application. 4. The Financial Creditor stated that notice was served on the Corporate Debtor by RPAD and email. However, the Corporate Debtor alleged that the notice was not physically filed or brought to the Tribunal's notice on the hearing date. 5. The Tribunal examined the rules related to serving notices and processes, emphasizing that notices may be served by post or email. The Tribunal found that the Corporate Debtor was not duly served notice of the Company Petition by the Financial Creditor, as required by the rules. 6. The Tribunal allowed the application by the Corporate Debtor to set aside the ex-parte order, citing the failure to serve notice properly. The Tribunal highlighted the importance of following the rules for serving notices to ensure fair adjudication. 7. The Tribunal clarified that a previous ruling was not applicable to the current case due to different facts. The application by the Corporate Debtor was allowed on the condition that a counter, if any, must be filed within two weeks, failing which the petition would stand dismissed. 8. In conclusion, the Tribunal set aside the ex-parte order, emphasizing the necessity of proper service of notices in legal proceedings for fair adjudication. The judgment highlighted the importance of adherence to rules and procedures to uphold the principles of justice.
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