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2023 (1) TMI 304 - AT - Insolvency and BankruptcyInitiation of CIRP - Financial Creditors - whether notices sent in Section 7 Application to the Corporate Debtor were duly served or not? - HELD THAT - In Section 7 Application, which has been filed by the Financial Creditor, the notices which were sent to the Corporate Debtor were at the email address registered as shown in Company Master Data obtained on 26.10.2021. The fact that subsequently the Corporate Debtor got its email address changed in the Company Master Data is reflected in Company Master Data obtained on 09.03.2022, cannot be a ground to be pressed by the Corporate Debtor that notices were not sent at the registered email address of the Corporate Debtor - The Financial Creditor has also filed an affidavit of service dated 15.12.2021 before the Adjudicating Authority where details of service of notices were mentioned. The Adjudicating Authority being fully satisfied by the affidavit of service and materials brought on record has held that notices were served. The letter produced itself clearly indicates that Rajendra Kumar was a staff of 3 C Company and he requested that he should be removed from the post of Director from all the Companies of 3 C Group. The letter sent by Rajendra Kumar has been brought on record by the Appellant himself, which indicates that Rajendra Kumar was Director in All Companies of 3 C Group, hence, the signature of Rajendra Kumar on the loan Agreement is clearly explained as he was made Director in all Companies of 3 C by the Appellant and other Promoters. Coming to the RTI reply, which has been filed by the Appellant, suffice it to say that RTI reply cannot be a basis for disregarding the loan Agreement dated 31.05.2018. Admittedly, the RTI reply was obtained at the instance of the Appellant on 03.09.2022, which was a document procured by the Appellant for the purposes of the case. More so, the amount transferred in the Bank account of the Appellant was in pursuance to the loan Agreement. There is no denial of transfer of the amount by Bank transfer in the account of the Corporate Debtor. When disbursement of the loan is not even denied, the cry of the Appellant that loan Agreement was forged, has no weight. Further, the Adjudicating Authority has also relied on record of Financial Information in Form C in support of establishing default. There were sufficient materials before the Adjudicating Authority to accept the debt and default and no error hasbeen committed in admitting Section 7 Application - Appeal dismissed.
Issues:
1. Validity of notices served on the Corporate Debtor. 2. Authenticity of the loan agreement dated 31.05.2018. Analysis: Issue 1: Validity of notices served on the Corporate Debtor The appellant, a suspended Director of the Corporate Debtor, challenged the admission of the Section 7 Application by the Financial Creditor, claiming that the notices were not served properly. The Financial Creditor contended that notices were sent via email and Speed Post to the registered email and address of the Corporate Debtor. The Tribunal examined the evidence, including Company Master Data, tracking reports, and affidavits of service. It was found that the notices were duly served on the Corporate Debtor, even though received by another company where the appellant was also a director. The Adjudicating Authority had proceeded ex-parte due to non-appearance of the Corporate Debtor on multiple dates. The Tribunal concluded that the notices were validly served, dismissing the appellant's argument. Issue 2: Authenticity of the loan agreement dated 31.05.2018 The appellant claimed that the loan agreement was forged as the signatory, Rajendra Kumar, was not a director of the Corporate Debtor at the relevant time. However, a letter from Rajendra Kumar himself indicated that he was made a director in all companies of the 3 C Group, including the Corporate Debtor. The Tribunal found this letter, submitted by the appellant, to support the authenticity of the loan agreement. Additionally, the appellant's reliance on an RTI reply to challenge the agreement was deemed insufficient as the loan disbursement was not denied, and bank statements confirmed the transfer. The Adjudicating Authority also relied on financial information to establish default. Consequently, the Tribunal upheld the admission of the Section 7 Application, finding no merit in the appellant's appeal. In conclusion, the Tribunal dismissed the appeal, affirming the validity of the notices served on the Corporate Debtor and the authenticity of the loan agreement dated 31.05.2018.
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