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TMI Blog2024 (5) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Appeal (IB) No. 4278(MB)/2019, whereby the Adjudicating Authority has admitted the Application under Section 9 of the Code and CIRP proceeding have been initiated against the Appellant. Submissions of the Appellant/ Sh Mukund Rajhans - Suspended Director of Topaki Media Private Limited-TMPL - Corporate Debtor Appellant submits that: Despite, the Debt/liability being a disputed one the Adjudicating Authority (NCLT, Mumbai Bench) has admitted the petition for initiating Corporate Insolvency Resolution Professional ("CIRP"). TMPL did not owe any operational debt to the Respondent because it was merely acting as an agent of Videocon Industries Limited ("VIL") while dealing with the Respondent. Therefore, in terms of Section 230 of Indian Contract Act, 1872 ("Act"), TMPL could not have been made liable to repay the dues owed by VIL. The Respondent did not serve / failed to prove the service of the demand notice issued under Section 8 of the Insolvency & Bankruptcy Code, 2016. Raised the issue of improper board resolution for the authorised signatory of the Respondent. 2. TMPL used to provide services for various clients including VIL, whereby it acted as an agent of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has failed to specify the exact date on which the said demand notice was served upon TMPL. The documents placed on record, like the tracking receipt or delivery acknowledgement are not sufficient to proof the delivery. The Applicant further claims that there is a discrepancy in the address / addresses mentioned on the documents brought on record by the Respondent, with respect to the pin code. Therefore, the Respondent has not complied with the mandatory requirement of serving the demand notice under Section 8 of the IBC upon the registered upon the TMPL. 6. Appellant further claims that TMPL had only been acting as an agent of VIL. In terms of Section 230 of the Indian Contract Act, 1872. TMPL could not have been made liable to repay the dues of VIL, even though, the Purchase Orders (POs) were issued by TMPL to the Respondent and the Respondent delivered the invoices to TMPL. As per Section 230 of the Act, TMPL / an agent is bound by a contract entered into by it on behalf of its Principal / VIL, even though, their did not exist any contract binding TMPL's in such manner. 7. TMPL did not owe any operational debt to the Respondent in terms of Section 5(21) of the IBC because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Since the data pertained to six years old delivery, the Post Master inquired the same from the Senior Superintendent of post offices, Mumbai vide letter dated 01.03.2023. 11. The Respondent submits that the Corporate Debtor never disputed the address on which the demand notice was issued to the Corporate Debtor. 12. The Respondent relies upon the judgment of Hon'ble Apex Court in Greater Mohali Area Development Authority and Ors. Vs. Manju Jain and Ors. (2010) 9 SCC 157 wherein the Hon'ble Apex Court held as under: "... 18. In C.C. Alavi Haji v. Palapetty Muhammed [(2007) 6 SCC 555: (2007) 3 SCC (Cri) 236] this Court reiterated a similar view that Section 27 of the General Clauses Act, 1897 and Section 114 Illustration (f) of the Evidence Act, give rise to a presumption that the service of a notice has been effected when it is sent to the correct address by registered post. This Court held as under: (SCC p. 564, para 14) "14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. ... Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Operational Creditor was not directly dealing with the Videocon Group for its outstanding dues and was not making any demands for outstanding dues from the Respondents. It further submits that insolvency proceeding against VIL are a separate case and has no bearing on this Appeal. Had the Operational Creditor being dealing directly with VIL, it would have duly raised its claim before the Resolution Professional for VIL. Appraisal 14. Heard the Learned Counsel for both the parties and perused all the documents on record. 15. The issue before us is whether the Appellant is liable to pay the outstanding dues to the Operational Creditor in the instant facts of the case and whether admission of insolvency proceedings against it under Section 9 of the Code are tenable or not. 16. During the course of the business, the Appellant used to place Purchase Orders/ Release Orders from time to time with the Operational Creditor namely Rajasthan Patrika Private Limited. The Rajasthan Patrika Private Limited, the Respondent in this case, used to publish the advertisements in its newspapers and raised the invoices from time to time, which were duly sent to the Corporate Debtor. All the unpai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The attempt to settle the dues using barter system, which was being worked out by the Applicant i.e. TMPL, could not be continued due to the problems arising out new regime of GST. 21. Furthermore, it is on record that after the issue of the admission orders of insolvency against VIL, the Applicant i.e. TMPL has filed a claim of Rs.23,35,98,606/- as an Operational Creditor before the IRP of VIL and the same has been fully admitted by the RP of VIL. Under these circumstances, TMPL cannot now shift its liability on VIL. 22. In his defence the Appellant relies upon Section 230 of the Indian Contract Act, 1872, which is reproduced herein:- "... 230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal. - In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary.-Such a contract shall be presumed to exist in the following cases:- (1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) Where the agent does not disclose the name of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Demand notice by operational creditor (1) An operational creditor shall deliver to the corporate debtor, the following documents, namely.- (a) a demand notice in Form 3; or (b) a copy of an invoice attached with a notice in Form 4. (2) The demand notice or the copy of the invoice demanding payment referred to in subsection (2) of section 8 of the Code, may be delivered to the corporate debtor, (a) at the registered office by hand, registered post or speed post with acknowledgement due; or (b) by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor. (3) A copy of demand notice or invoice demanding payment served under this rule by an operational creditor shall also be filed with an information utility, if any " 27. Now we examine the validity or otherwise of the service of Demand notice in the facts of the case. Demand notice dated 31.07.2018 was sent by registered post on 01.08.2018 to the registered address of the Corporate Debtor, which was not replied to by the Corporate Debtor. Some documentary evidence is available on record, which includes the details of the India Post and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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