9911796707
TMI Blog2019 (12) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... n the application was filed by the Financial Creditor, this Tribunal had the necessary territorial jurisdiction to hear and entertain the present application and the Financial Creditor as well as the registry of this Tribunal had repeatedly tried to send notices by various modes to serve the Corporate Debtor and the notices were sent by registered speed post and by e-mail and could be deemed to have been served, even when the proof of actual delivery is not there. Notice was however admittedly received by email by the Corporate Debtor - in the present case the issue relates to the territorial jurisdiction even though this Tribunal had the territorial jurisdiction on the date of filing of the application as well as the jurisdiction to entertain the subject matter i.e. application under Section 7 of the Code. There are no substance in the application and the arguments advanced by Ld. Sr.Counsel for the applicant - application dismissed. - C.A.(IB) No. 1285/KB/2019 In C.P. (IB) No. 107/KB/2019 - - - Dated:- 5-11-2019 - Shri Jinan K.R Hon'ble Member (Judicial) And Shri Harish Chander Surit Hon'ble Member (Technical) Mr. Joy Saha And Ms. Srimoyee Basu, For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the impugned order passed by this Tribunal is bad in the eye of law and the application of the Financial Creditor was prima facie defective and it was based on suppression of facts. 5. In its affidavit filed in reply to the application the Chief Manager and Branch Head of Resolution, Recovery Law Cluster (South) at DD-II, Sector-I, Salt Lake City, Kolkata 700064, who is stated to have been authorized by the financial creditor/respondent herein, to affirm this affidavit, has submitted that the allegations made in the application are all denied. It is submitted that the Corporate Debtor did not appear in the proceedings in question in spite of the paper publication of the notice and therefore the Corporate Debtor was proceeded ex-parte and the said order cannot be allowed to be questioned by the applicant at this stage. 6. It is submitted that in spite of sending notice dated 24th January, 2019 to the Corporate Debtor issued by this Tribunal along with copy of the application under Section 7 of the Code by speed post with A/D on 5th February, 2019, the said article returned to the Ld. Advocate for the Financial Creditor with postal remark Not delivered add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Financial Creditor to change the registered office was not replied to and the Financial Creditor did not give their consent for the same. 11. It is submitted by the Ld. Counsel for the Financial Creditor that the argument of the Ld. Counsel for the Corporate Debtor that if this Tribunal had no jurisdiction to hear the application under Section 7 filed by the Corporate Debtor because the registered office of the Corporate Debtor is located in Odisha, how can the applicant pray for an order recalling of the said order of admission passed by this Tribunal on 5th September, 2019. If this Tribunal did not have jurisdiction to pass that order of admission, it shall have no such jurisdiction even to recall the said order. 12. We have heard the detailed arguments on both sides. The main argument of the Ld. Sr. Counsel appearing on behalf of the Corporate Debtor/Applicant, who is seeking setting aside and recalling of the order of admission passed on 5th September, 2019 by this Tribunal is as under:- a) That this Tribunal did not have the jurisdiction to entertain the application or pass the impugned order dated 5th September, 2019. b) The Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to serve the notice at the registered office address. It is however admitted by the applicant that the notice of the proceedings was received at the e-mail id of the Corporate Debtor without a copy of the application or the annexures. It is submitted that there is no document placed on record by the Financial Creditor to indicate that a copy of the petition/application has been served on the Corporate Debtor. 17. In support of the arguments, the Ld. Sr. Counsel appearing on behalf of the Applicant has relied upon the case of (2013)10SCC136, Jagmittar Sain Bhagat vs. Dir. Health Services, Haryana and Ors. Of Hon'ble Supreme Court, wherein the Hon'ble Supreme Court has observed as under:- 7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a Superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection. But, in this case, we find no conduct of the defendants which amounts to a waiver, or which precludes them from raising the objections . 20. The Hon'ble Supreme Court relied on one of its earlier judgments in (1955) 1 SCR 117,122 in the case of Kiran Singh v. Chaman Paswan, where the Hon'ble Supreme Court had observed as under:- The policy underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted In failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruary, 2019 to the Corporate Debtor which was admittedly received by the Corporate Debtor in their letter dated 11th February, 2019, annexed with the application. The Ld. Counsel for the Financial Creditor further relied upon the case of (1994) 4 Supreme Court Cases 711, Oil and Natural Gas Commission vs. Utpal Kumar Basu and Others, wherein the Supreme Court observed as under:- 13. The submission of the learned counsel for NICCO based on Section 21 of the Code of Civil Procedure that even if this Court comes to the conclusion that the High Court of Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice, refuse to interfere with the decision of the High Court unless it is otherwise found to be erroneous. While the spirit of Section 21 of the Code of Civil Procedure may support such a submission, we are afraid, the discretion cannot be used in favour of a party which deliberately invokes the jurisdiction of a court which has no jurisdiction whatsoever for ulterior motives. That would only encourage such type of litigation. The object underlying the provision in Section 21 is not to encourage such litigants but to avoid harassment to litigants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and application under Section 9 on failure of payment, if filed after 10 days, is maintainable. 25. The Ld. Counsel for the Financial Creditor has submitted that the Corporate Debtor has deliberately chosen to stay away from the proceedings in spite of the notice having been received by e-mail on 7th February, 2019 and therefore it cannot question the jurisdiction of this Tribunal. It is submitted that the judgments cited by the Corporate Debtor relate only to the territorial jurisdiction and therefore cannot be applied to the facts of the present case where this Tribunal had the necessary power and jurisdiction to entertain the subject matter in the application under Section 7 of the Code, particularly on the date of the filing and if the corporate debtor had come forward on receipt of the email and contested the case, and informed this Tribunal about the shifting of its office to Odisha, the complexion of the proceedings would have changed. But it did not happen for the fault of the corporate debtor, and thus he cannot be allowed the benefit of his own wrong. 26. In the reply to the argument advanced on behalf of the Financial Creditor, the Ld. Sr.Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the applicant in support of this application for setting aside the order of admission relate to issues of lack of jurisdiction as regards the subject matter but in the present case the issue relates to the territorial jurisdiction even though this Tribunal had the territorial jurisdiction on the date of filing of the application as well as the jurisdiction to entertain the subject matter i.e. application under Section 7 of the Code. 30. In the aforesaid facts and circumstances, we find no substance in the application and the arguments advanced by Ld. Sr.Counsel for the applicant. The applicant/Corporate Debtor may avail other remedies available to him as advised. The application is thus dismissed with no order as to costs. 31. The order of stay in continuing the CIRP is hereby vacated. The period taken for disposal of this application from the date of stay order is hereby excluded for computation of 180 days from the date of admission. 32. The directors/promoters of the suspended board of directors of the corporate debtor are directed to extend all assistance and co operation to the IRP/RP as may be required/instructed by him in managing the affairs ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
