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TMI Blog2020 (8) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... otices were also pasted on the premises of Grand Batteries Pvt Ltd in which the appellant happened to be Director. The Notice under Section 13(2) of SARFEASI Act was served upon the Corporate Debtor and its sister concern, M/s Nihan Batteries Ltd, (Page 86 and 94 of Appeal Paper Book) at the common address. The IRP made a public announcement on 1.11.2019 as per Rule 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution for Corporate Persons) Regulations, 2016. In this Public Announcement the name of the Corporate Debtor, Insolvency commencement date in respect of corporate debtor, Corporate Identification No. of corporate debtor etc. is given. This public announcement is for public at large. Even if it is presumed that the appellant was not served at the correct address or at the correct email, this public announcement is made known to each and every citizen of country and the appellant cannot deny it. Therefore, the appellant should have filed the appeal within 45 days from the date of public announcement i.e. 1.11.2019. But the appellant has not done this and taking the irrelevant pleas that the email if not being used by them for the last three years or the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor and Guarantors under the SARFAESI Act, 2002 and demanded outstanding amount of ₹ 11,25,09,298.94 but the outstanding amount was not paid. The Financial Creditor filed Original Application before the DRT, Jaipur and is pending till the date of filing of Application before the NCLT, Jaipur. 5. The Financial Creditor filed application under Section 7 of the Insolvency Bankruptcy Code, 2016 before the NCLT, Jaipur for initiating corporate insolvency proceedings against the Corporate Debtor. Notice was served upon the Corporate Debtor but despite receipt of notice the Corporate Debtor did not appear before the NCLT, Jaipur and the NCLT Jaipur was constrained to proceed exparte against the Corporate Debtor and admitted the application of the Financial Creditor and appointed IRP. 6. Being aggrieved by the said impugned order the appellant has filed the present appeal. The appellant has stated that the application filed under Section 7 of I B Code was never served on the Corporate Debtor or the erstwhile Directors of the Corporate Debtor. 7. The appellant stated that the letter dated 26.8.2019, informing about the filing of the application under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent on the registered email address of the Corporate Debtor. 1st respondent stated that the 2nd respondent had also sent an email to the statutory auditor of the Corporate Debtor to provide information, documents and records of the Corporate Debtor. 1st respondent stated that on 4.12.2019, 2nd Respondent filed an application under Section 19(2) of I B Code which was with regard to the non-cooperation of the erstwhile directors and statutory auditors of the Corporate Debtor. 17. 1st respondent stated that since the appellant was evading service of the Notice, he was additionally served on the address Plot No.125-128, Shree Radhvalabh Industrial Area, Village Piplaz, Tehsil Beawar, Ajmer, Rajasthan. 18. 1st respondent stated that notices were pasted on Grand Batteries Pvt Ltd as the erstwhile Director of the Corporate Debtor also happened to be a director in Grand Batteries Pvt Ltd . 1st respondent stated that there was proper service of notice to the appellant. 1st respondent further submitted that an email was also sent to [email protected], which was mentioned on MCA website as the email of erstwhile Director of Grand Batteries Pvt Ltd. 1st respondent also submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses. Learned counsel for the appellant argued that the Respondent No.1 has concealed the factum of the One Time Settlement (OTS) proposed by the Corporate Debtor before the Adjudicating Authority. Learned counsel for the appellant argued that the impugned order passed being vioaltive of principle of natural justice and is liable to be set aside. 26. Learned counsel for the 1st respondent argued that the appellant has admitted that the notice pertaining to the proceedings before the NCLT Jaiput was duly served upon the email address [email protected]. Learned counsel for the 1st respondent further argued that the nowhere the appellant has denied the knowledge pertaining to the service of the notice of the proceedings before the NCLT Jaipur. Learned counsel for the 1st respondent argued that the appellant has merely made a vague argument that the said email was used by the erstwhile employees of the Corporate Debtor. Learned counsel for the 1st respondent argued that the appellant has not placed an affidavit of the said employee to substantiate his claim. Learned counsel for the 1st respondent argued that the Notice dated 25th August, 2019 was also sent to email ID cs.sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed director, the RP filed an application under Section 19(2) of I B Code before the Adjudicating Authority. 2nd Respondent further argued that in reply to application under Section 19(2) of I B Code, the appellant himself has annexed minutes of COC Meeting dated 17.10.2019 wherein Any other Matter category the fact of sending of email to the auditor has been mentioned. 2nd respondent further argued that it is difficult to believe that the statutory auditor of corporate debtor informed the appellant only in January, 2020, when the records clearly shows that the auditor became aware of the CIRP proceedings on 4.11.2019. 2nd Respondent argued that the present appeal has been filed by the appellant only after application under Section 19(2) was filed before the Adjudicating Authority. 2nd Respondent further argued that the IRP made a public announcement and thereafter Form G was published on 1.11.2019 and thereafter on 21.12.2019. 2nd Respondent argued that the appellant has not approached this Appellate Tribunal with clean hands and has not been able to explain the day to day delay caused in filing of the appeal and therefore, the appeal deserves to be dismissed on the issue of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oks of accounts and other records of the Corporate Debtor. We note that that the statutory auditor of corporate debtor replied vide email dated 04.11.2019 and the statutory auditors sent ITR IV, computation income audit report and has audit report to the IRP and this has not been denied by the appellant. We also note that 2nd Respondent has to file an application under Section 19(2) of I B Code before the Adjudicating Authority due to non-cooperation of the corporate debtor and its suspended director. We note that the IRP made a public announcement on 1.11.2019 as per Rule 6 of Insolvency and Bankruptcy Board of India (Insolvency Resolution for Corporate Persons) Regulations, 2016. In this Public Announcement the name of the Corporate Debtor, Insolvency commencement date in respect of corporate debtor, Corporate Identification No. of corporate debtor etc. is given. This public announcement is for public at large. Even if it is presumed that the appellant was not served at the correct address or at the correct email, this public announcement is made known to each and every citizen of country and the appellant cannot deny it. Therefore, the appellant should have filed the appeal with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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