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TMI Blog2023 (11) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... I.A. No. 836 of 2021 should have been served at the registered office address instead of branch address. The Appellant has not denied the fact that the reply to the notice dated 26.04.2021 served by the Liquidator at the branch address was given by the branch of the Appellant. Meaning thereby, the Appellant knew about the proceedings initiated by the Liquidator which was triggered with the issuance of demand notice. Otherwise also from the perusal of the evidence on record, it is clear that service of the notice at the branch office was effected, therefore, it does not lie in the mouth of the Appellant to raise an issue that service was not effected at the registered office and in this regard it cannot take advantage of the averments made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts by the Adjudicating Authority in concluding that the Appellant was actually served and did not choose to appear. 2. In brief, the Liquidator of M/s Floram Shoes (India) Pvt. Ltd., in IBA/579/2019 filed I.A. No. 836 of 2021, claiming an amount of Rs. 16.20 Lakhs towards arrears of rent of the ATM of the Appellant situated in the property of Corporate Debtor (in liquidation). In this application, the Appellant was stated to have been served with a notice and since it did not appear despite various opportunities, therefore, order to proceed against it ex-parte was passed on 01.02.2022. The Appellant filed I.A.(IBC)/303/CHE/2022 in I.A. No. 836 of 2021 for recalling of the order dated 01.02.2022 by which the Appellant was proceeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proof of delivery towards the name of Counsel for the Liquidator perhaps indicates that the notice was returned to her. She feigned ignorance of the proceedings initiated by the Liquidator through I.A. No. 836 of 2021 and submitted that in the absence of due notice, the Court should not have proceeded against the Appellant ex-parte. She has further submitted that the Adjudicating Authority has further erred in observing that the Appellant did not appear on at least four occasions. It is submitted that I.A. No. 836 of 2021 was filed on 13.08.2021 and was listed for the first time on 16.09.2021. It was re-posted on 30.09.2021 and on that date there was no representation on behalf of the Respondent (Appellant herein) and fresh notice was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Vijay Kumar Madan and Ors. Vs. R.N. Gupta Techincal Education Society and Ors. (2002) 5 SCC 30 and has referred to para 7 which is as under:- 7. Power in the Court to impose costs and to put the defendant applicant on terms is spelled out from the expression Upon such terms as the Court directs as to costs or otherwise . It is settled with the decision of this Court in Arjun Singh v. Mohinder Kumar and Ors., AIR (1964) SC 993, that on an adjourned hearing, in spite of the Court having proceeded ex-parte earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right. An application under Rule 7 is required to be made only if the defendant wishes the proceedings to be relegated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant is of no avail because the Liquidator has the evidence that the ATM is being used by the people other than the employees of the CD because after the Corporate Debtor went into Liquidation the employees are no more there and the people who are using its ATM other than the employees of the CD are paying commission to the Bank/Appellant. It is however submitted that this issue is subject matter of the application I.A. No. 836 of 2021 which it is yet to be decided as to whether the Liquidator is entitled to claim the amount of rent or not?. 7. It is further argued that the judgment relied upon by the Appellant in the case of Vijay Kumar Madan and Ors. (Supra) is not applicable to the facts of this case because no costs has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice at the branch office was effected, therefore, it does not lie in the mouth of the Appellant to raise an issue that service was not effected at the registered office and in this regard it cannot take advantage of the averments made in the lease deed about the service of notice at the address given in the lease deed when it had been reacting to the notices, issued to and received at branch office of the Bank. In so far as, the contention of the Appellant that the condition of deposit of Rs. 10 Lakhs is onerous is concerned, the said contention is totally without any basis because the said amount is ordered to be kept intact by the liquidator and to be deposited in the fixed deposit, without using it for any other purpose till the dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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