National Company Law Appellate Tribunal
Visa Coke Limited vs Mesco Kalinga Steel Limited on 3 October, 2024
1
NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH,
NEW DELHI
Comp. App. (AT) (Ins) No. 247 of 2023
IN THE MATTER OF:
Visa Coke Ltd ...Appellant
Versus
Mesco Kalinga Steel Ltd.
...Respondent
Present:
For Appellants : Mr. Diwakar Maheshwari, Pratiksha Mishra, Adv.
For Respondent : Mr. Saswat Kumar Acharya, Dhananjay Bhaskar Ray,
Adv.
ORDER
Per: Justice Rakesh Kumar Jain: (Oral) 03.10.2024 : This appeal is against the order dated 24.01.2023 filed under Section 61 of the Insolvency and Bankruptcy Code, 2026 (in short 'Code'), by the Operational Creditor who has been unsuccessful before the Adjudicating Authority (National Company Law Tribunal, Cuttack Bench) on the ground that the notice issued under Section 8 of the Code was not in accordance with law.
2. In brief, the Appellant filed an application under Section 9 of the Code for the resolution of an amount of Rs. 4,19,77,245.17/- inclusive of 15% penal interest per annum till 31.03.2021.
3. However, before filing the petition, the Appellant served a demand notice under Section 8 of the Code in form- 3 addressed to Mr. Sameer Singh, Director, Bibhuti Bhushan Rath, Chief Financial Officer and Mr. S. Subudhi, Manager Commercial of the Corporate Debtor.
Comp. App. (AT) (Ins) No. 247 of 2023 2
4. The said notice was addressed to all the three Key Managerial Personnel (KMP) of the Corporate Debtor at their official address, namely, Mesco Kalinga Steel Limited, 3915, Lewis Road, Mesco Tower, Kedar Gouri Squre, Bhubaneshwar - 751002.
5. The notice was sent allegedly through courier which was received by all the three aforesaid persons. Thereafter, the application under Section 9 was filed. Although, it was not the defence taken by the Respondent/CD that the notice issued under Section 8 was not issued to the CD yet during the course of hearing before the Tribunal, the same issue was raised and the Tribunal took cognizance of the said objection and framed the following question:-
"Whether statutory demand notice has been served upon the CD?"
6. This issue was decided by the Tribunal by recording the following observations:-
"Point No.2
9. On the respondent/corporate debtor side raised another plea that no demand notice under section 8(1) of IBC 2016 was served upon the corporate, hence the petition is not maintainable. In contra on the petitioner side argued that notice dated 31.03.2021 found in page 50 of the petition is valid statutory demand notice, which was duly served upon the key managerial personal, hence the petition is validly filed and maintainable. This is the pure question of law.
10. Section 8(1) of IBC 2016 is required the operational creditor may send demand notice to the corporate debtor. The form and manner how the notice to be served are set out in Rule 5 of the Adjudicating Authority Rules 2016.
11. The petition filed under section 9 of IBC 2016 without serving notice under section 8 of IBC 2016 is not maintainable. Indeed, failure to serve the demand notice is not curable defect. A notice under section 8 of IBC 2016 set in motion, the entire process of Insolvency. After ten days from the service of notice only the operational creditor gets right to file the petition.
Comp. App. (AT) (Ins) No. 247 of 2023 3
12. Thus, there is no pale of controversy that the demand notice to the corporate debtor under section 8 of IBC 2016 is mandatory, preceding to file a petition under section of 9 of IBC 2016.
13. In this case petitioner sent notice dated 31.03.2021 addressed to three managerial persons M/s.Sameer Singh, Bibhuti Bhushan Rath and S.Subudhi but no notice was sent/addressed to the corporate debtor.
14. The statutory Form No.3 of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016 mention "To Name and address of the registered office of the corporate debtor", further in the Form No.5 under the heading Instructions Annexure VII it is mentioned that the proof of serving copy of the application(a) to the corporate debtor(b)......It is crystal clear that Section 9 of IBC petition can be filed only against the corporate debtor after giving prior notice under section 8 of IBC to the corporate debtor. In this case no notice was sent to the corporate debtor against whom this present petition is filed.
15. On the petitioner side relies upon Rule 5(2) of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016. For ready reference the section 8(1) of IBC 2016 and Rule 5 of Adjudicating Authority Rules 2016 are extracted:
8. Insolvency resolution by operational creditor. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debt or copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. 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 sub-section (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.
16. On the petitioner side submitted that the delivery to the corporate debtor is sufficient if notice served by registered post on the director or key managerial personnel of the corporate debtor. On the petitioner side read the Rule 5 (2)(a)(b) in disjunction manner picking up under lined sentences as above. The interpretation of the petitioner side is not acceptable.
Comp. App. (AT) (Ins) No. 247 of 2023 4
17. The section 8(1) of IBC 2016 and Rule 5(1) & (2) of Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016. shall read conjointly and to arrive plain meaning. In section 8 (1) it is mentioned that operational creditor may on occurrence of a default deliver a demand notice of unpaid operational debt demanding payment of the amount involved in the default to the corporate debtor. Rule 5(1) begins with "An operational creditor shall deliver to the corporate debtor the following documents namely- Rule 5(2) describes the mode of service of demand notice on corporate debtor. It is stated that notice of/to the corporate debtor can deliver at the registered office of the corporate debtor by hand, Registered post or Speed post etc.
18. In short if the notice is addressed to the corporate debtor a non- living juristic person, then such a notice addressed to the corporate debtor can be delivered upon the key managerial person. But in our case no notice is addressed to the corporate debtor. The three key managerial persons of corporate debtor M/s. Sameer Singh, Bibhuti Bhushan Rath and S. Subudhi, received the notices sent to them by registered post. In our case when no notice is addressed/sent to corporate debtor the question of whether service is valid or not does not arise at all. For the reasons discussed above it is concluded that no statutory demand notice has been served upon the corporate debtor, in consequence the petition is liable to be dismissed."
7. While assailing the aforesaid finding recorded by the Tribunal, Counsel for the Appellant has vehemently argued that the Tribunal has committed a patent error in dismissing the application on the ground that the notice was not given to the juristic person but has been addressed to the KMP of the CD. He has submitted that notice dated 31.03.2021 though was addressed to all the three KMP but it has been delivered at the registered office i.e Mesko Kalinga Steel Limited 3915, Lewis Road, Mesco Tower, Kedar Gauri, Bhubaneshwar, Odisha 751002, therefore, it is deemed to have been served at the registered office of the CD. He has further submitted that the application under Section 9 of the Code was filed in terms of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (Rules) Comp. App. (AT) (Ins) No. 247 of 2023 5 in which Rule 5 deals with the Demand notice by operational creditor. It is submitted that the demand notice can be delivered by two modes i.e. 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. It is submitted that in the present case delivery of the demand notice has been by courier, therefore, notices were properly delivered/ served and the application in this regard should not have been dismissed or the Appellant should not have been non-suited on this ground only. In support of his submissions, he has relied upon a decision of this court rendered in the case of Niraj Kumar Singh Vs. Mr. Faihzan Khan, CA (AT) (Ins) No. 566 of 2022.
8. On the other hand, Counsel for the Respondent has submitted that the notice under Section 8 of the Code is a sine qua non for invoking Section 9 of the Code by the operational creditor. It is further submitted that Section 8 categorically provides that notice has to be given to the CD. It is submitted that Rule 5 of the Rules also says that the notice in form 3 has to be delivered to the CD. He has also submitted that the legislature has used the word CD both in the Code and Rules and has nowhere said that notice can be delivered to the KMP of the CD. However, he has not denied that Rule 5(2)(b) provides for notice by electronic mail service to a whole time director or designated partner or key managerial personnel, if any, of the corporate debtor but the present case is not of delivery of notice on the email rather it is a case where hard copy of the notice has been sent through courier, therefore, Rule 5(2) (a) shall apply. He has further submitted that Form 5 of the Rules provides for the mechanism for filing the application under Section 9 in which the Comp. App. (AT) (Ins) No. 247 of 2023 6 instructions provides that Copy of the invoice / demand notice, in Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 served on the corporate debtor has to be attached. Counsel for the Respondent has further submitted that there is no concept of constructive notice to the CD by issuing notice to its personnel. He has also argued that the question of validity of the notice is purely a question of law because facts are not in dispute and therefore, the same has been taken into consideration while deciding the same by the Tribunal by which even if the Respondent has not taken the plea in defence will not make any difference for deciding the same on this ground. He has further argued that the decision in the case of Niraj Kumar (Supra) is not applicable to the present case because it was not the issue as to whether the notice issued to the KMP is valid rather it was a case where the dispute was about the identification of the CD.
9. We have heard Counsel for the parties and perused the record with their able assistance.
10. Section 9 of the Code provides for filing of an application to initiate Corporate Insolvency Resolution Process by an Operational Creditor. Section 9 is reproduced as under:-
"9. (1) After the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub- section (1) of section 8, if the operational creditor does not receive payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, the operational creditor may file an application before the Adjudicating Authority for initiating a corporate insolvency resolution process.
(2) The application under sub-section (1) shall be filed in such form and manner and accompanied with such fee as may be prescribed. (3) The operational creditor shall, along with the application furnish-- (a) a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor;
(b) an affidavit to the effect that there is no notice given by the Comp. App. (AT) (Ins) No. 247 of 2023 7 corporate debtor relating to a dispute of the unpaid operational debt; (c) a copy of the certificate from thefinancial institutions maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor; and (d) such other information as may be specified. (4) An operational creditor initiating a corporate insolvency resolution process under this section, may propose a resolution professional to act as an interim resolution professional. (5) The Adjudicating Authority shall, within fourteen days of the receipt of the application under sub-section (2), by an order-- (i) admit the application and communicate such decision to the operational creditor and the corporate debtor if,--
(a) the application made under sub-section (2) is complete;
(b) there is no repayment of the unpaid operational debt;
(c) the invoice or notice for payment to the corporate debtor has been delivered by the operational creditor;
(d) no notice of dispute has been received by the operational creditor or there is no record of dispute in the information utility; and
(e) there is no disciplinary proceeding pending against any resolution professional proposed under sub-section (4), if any (ii) reject the application and communicate such decision to the operational creditor and the corporate debtor, if--
(a) the application made under sub-section (2) is incomplete;
(b) there has been repayment of the unpaid operational debt;
(c) he creditor has not delivered the invoice or notice for payment to the corporate debtor;
(d) notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility; or
(e) any disciplinary proceeding is pending against any proposed resolution professional:
Provided that Adjudicating Authority, shall before rejecting an application under subclause (a) of clause (ii) give a notice to the applicant to rectify the defect in his application within seven days of the date of receipt of such notice from the adjudicating Authority. (6) The corporate insolvency resolution process shall commence from the date of admission of the application under sub-section (5) of this section."
11. It is provided in Section 9 (1) that after the expiry of the period of ten days from the date of delivery of the notice or invoice demanding payment under sub-section (1) of section 8, if the operational creditor do not receive Comp. App. (AT) (Ins) No. 247 of 2023 8 payment from the corporate debtor or notice of the dispute under sub-section (2) of section 8, then the operational creditor may file an application before the Adjudicating Authority for initiating the corporate insolvency resolution process.
12. The bare reading of Section 9(1) of the Code makes it amply clear that application under Section 9 has to follow the notice issued under Section 8 of the Code. In this regard, it shall be relevant to refer to Section 8 of the Code which is produced as under:-
"8. (1) An operational creditor may, on the occurrence of a default, deliver a demand notice of unpaid operational debtor copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed.
(2) The corporate debtor shall, within a period of ten days of the receipt of the demand notice or copy of the invoice mentioned in sub-section (1) bring to the notice of the operational creditor--
(a) existence of a dispute, if any, and record of the pendency of the suit or arbitration proceedings filed before the receipt of such notice or invoice in relation to such dispute;
(b) the repayment of unpaid operational debt--
(i) by sending an attested copy of the record of electronic transfer of the unpaid amount from the bank account of the corporate debtor; or
(ii) by sending an attested copy of record that the operational creditor has encashed a cheque issued by the corporate debtor.
Explanation.--For the purposes of this section, a "demand notice"
means a notice served by an operational creditor to the corporate debtor demanding repayment of the operational debt in respect of which the default has occurred."
13. The aforesaid Section clearly provides that an operational creditor after the occurrence of a default has to deliver a demand notice of unpaid operational copy of the invoice demanding payment of the amount involved in the default in such form and manner as may be prescribed. Section 8(2) further provides that it shall be for the corporate debtor to reply to the notice Comp. App. (AT) (Ins) No. 247 of 2023 9 within a period of ten days of the receipt of the demand notice in which issue regarding existence of a dispute or that the amount has already been paid may be raised. There is not a single word used by the legislature that the notice can be replied by the KMP of the Corporate Debtor because everywhere the word has been used as the CD.
14. Section 3(8) of the Code defines "corporate debtor" which means a corporate person who owes a debt to any person; Corporate person is defined in Section 3(7) which means a company as defined in clause (20) of section 2 of the Companies Act, 2013, a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008, or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider; Section 2(20) of the Companies Act, 2013 (in short ' Act') defines a company means a company incorporated under this Act or under any previous company law. Incorporation of a company is provided in Section 7 of the Act, 2013 which read as under:-
"7. Incorporation of company.-- (1) There shall be filed with the Registrar within whose jurisdiction the registered office of a company is proposed to be situated, the following documents and information for registration, namely:--
(a) the memorandum and articles of the company duly signed by all the subscribers to the memorandum in such manner as may be prescribed;
(b) a declaration in the prescribed form by an advocate, a chartered accountant, cost accountant or company secretary in practice, who is engaged in the formation of the company, and by a person named in the articles as a director, manager or secretary of the company, that all the requirements of this Act and the rules made thereunder in respect of registration and matters precedent or incidental thereto have been complied with;
(c) an affidavit from each of the subscribers to the memorandum and from persons named as the first directors, if any, in the articles Comp. App. (AT) (Ins) No. 247 of 2023 10 that he is not convicted of any offence in connection with the promotion, formation or management of any company, or that he has not been found guilty of any fraud or misfeasance or of any breach of duty to any company under this Act or any previous company law during the preceding five years and that all the documents filed with the Registrar for registration of the company contain information that is correct and complete and true to the best of his knowledge and belief;
(d) the address for correspondence till its registered office is established;
(e) the particulars of name, including surname or family name, residential address, nationality and such other particulars of every subscriber to the memorandum along with proof of identity, as may be prescribed, and in the case of a subscriber being a body corporate, such particulars as may be prescribed;
(f) the particulars of the persons mentioned in the articles as the first directors of the company, their names, including surnames or family names, the Director Identification Number, residential address, nationality and such other particulars including proof of identity as may be prescribed; and
(g) the particulars of the interests of the persons mentioned in the articles as the first directors of the company in other firms or bodies corporate along with their consent to act as directors of the company in such form and manner as may be prescribed. (2) The Registrar on the basis of documents and information filed under sub-section (1) shall register all the documents and information referred to in that subsection in the register and issue a certificate of incorporation in the prescribed form to the effect that the proposed company is incorporated under this Act. (3) On and from the date mentioned in the certificate of incorporation issued under sub-section (2), the Registrar shall allot to the company a corporate identity number, which shall be a distinct identity for the company and which shall also be included in the certificate.
(4) The company shall maintain and preserve at its registered office copies of all documents and information as originally filed under sub-section (1) till its dissolution under this Act. (5) If any person furnishes any false or incorrect particulars of any information or suppresses any material information, of which he is aware in any of the documents filed with the Registrar in relation to the registration of a company, he shall be liable for action under section 447.
(6) Without prejudice to the provisions of sub-section (5) where, at any time after the incorporation of a company, it is proved that the Comp. App. (AT) (Ins) No. 247 of 2023 11 company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company, or by any fraudulent action, the promoters, the persons named as the first directors of the company and the persons making declaration under clause (b) of subsection (1) shall each be liable for action under section 447. (7) Without prejudice to the provisions of sub-section (6), where a company has been got incorporated by furnishing any false or incorrect information or representation or by suppressing any material fact or information in any of the documents or declaration filed or made for incorporating such company or by any fraudulent action, the Tribunal may, on an application made to it, on being satisfied that the situation so warrants,--
(a) pass such orders, as it may think fit, for regulation of the management of the company including changes, if any, in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or
(b) direct that liability of the members shall be unlimited; or
(c) direct removal of the name of the company from the register of companies; or
(d) pass an order for the winding up of the company; or
(e) pass such other orders as it may deem fit: Provided that before making any order under this sub-section,-- (i) the company shall be given a reasonable opportunity of being heard in the matter; and
(ii) the Tribunal shall take into consideration the transactions entered into by the company, including the obligations, if any, contracted or payment of any liability."
15. Section 7(2) of the Act clearly provides that the Registrar, on the basis of documents and information filed under sub-section (1), shall register all the documents and information referred to in that subsection in the register and issue a certificate of incorporation in the prescribed form to the effect that the proposed company is incorporated under the Act. The meaning of the aforesaid is that the company which is incorporated by way of procedure provided in Section 7 is called a company in terms of Section 2(20) of the Act. The effect of registration of a company is provided in Section 9 which is reproduced as under:-
Comp. App. (AT) (Ins) No. 247 of 2023 12 "9. Effect of registration.-- From the date of incorporation mentioned in the certificate of incorporation, such subscribers to the memorandum and all other persons, as may, from time to time, become members of the company, shall be a body corporate by the name contained in the memorandum, capable of exercising all the functions of an incorporated company under this Act and having perpetual succession 1*** with power to acquire, hold and dispose of property, both movable and immovable, tangible and intangible, to contract and to sue and be sued, by the said name."
16. In view of the aforesaid various provisions of the Code, Rules and Act one thing is clear that the Company/CD is different from KMP, therefore, the legislature has consciously used the word CD in Section 8, Section 9 Rule 5, From 3 & Form 5 etc. and KMP is conspicuous by its absence in all these provisions which cannot be applied in place of CD.
17. Counsel for the Appellant has then submitted that Section 8(1) has used the word delivery of demand notice. In this regard, he has drawn our attention to Rule 5 of the Rules to contend that the notice can be delivered by two modes provided in Rule 5(2) of the Rules. Once the notice has been delivered at registered office then it is a deemed service of the notice and therefore, it is does not lie in the mouth of the Respondent to contend that notice has not been served upon the CD. In this regard, Counsel for the Respondent has submitted that delivery of the notice at the registered office is altogether different from the delivery of notice to the CD. It is submitted that all the three KMP are stationed at the registered office of the CD but the notice issued to them are in their personal capacity. Had it been a notice to the CD then it would have been in the name of the CD through KMP but in the absence of the same it cannot be treated to have been addressed and Comp. App. (AT) (Ins) No. 247 of 2023 13 delivered to the CD. In this regard, he has also drawn our attention to Form- 3 in which it is submitted that "Name and address of the registered office of the corporate debtor" It is submitted that the legislature had deliberately used the word name and address of the registered office of the CD for the purpose of addressing the notice in Form-3 and therefore, a printed proforma has been provided otherwise there is no need for a printed perform notice as it could have been served by the OC to any person of the Company but notice has to be addressed to the company which is a juristic person having a separate entity.
18. In so far as the decision in the case of Niraj Kumar (Supra) is concerned, it is submitted that the said decision is altogether on different facts, therefore, it is not applicable to the present case.
19. We have heard Counsel for the parties and perused the record.
20. Undisputedly, the issue of notice under Section 8 that too on a printed proforma (Form 3) is a sine qua non for the purpose of invoking Section 9 of the Code for filing an application under Section 9 of the Code by the OC. In case, the notice is not issued then the cause of action is not complete and application under section 9 cannot be maintained. In the present case, though the notice has been issued on 31.03.2021 and it is also on Form 3 but the same has been addressed to Mr. Sameer Singh, Director, Bibhuti Bhushan Rath, Chief Financial Officer and Mr. S. Subudhi, Manager Commercial of the Corporate Debtor in their capacity of KMP of the CD but no notice has been addressed to the company (CD), namely, Mesco Kalinga Steel Ltd. through its managing director etc., therefore, the said notice cannot be termed to have Comp. App. (AT) (Ins) No. 247 of 2023 14 been delivered to the CD and therefore, the same cannot be taken to be a notice issued under Section 8 of the Code.
21. In so far as the delivery of notice is concerned, Rule 5 of the Rules prescribes the procedure in which Rule 5(2)(a) provides that notice has to be sent to the Registered office for which various modes have been provided, namely, it can be sent by hand, registered post or speed post with acknowledgement but the notice has to be sent of the CD at its registered office. Rule 5(2)(b) provides for delivery of notice by electronic mail to the KMP of the CD but it does not apply to the present case because no electronic mail has been sent, therefore, we need not to make any observation in this regard. Form-3 specifically provides for a notice to mention the name of the CD and delivered at the address of the registered office of the corporate debtor. Similarly in Form - 5 in which the application is filed under Section 9, instructions have been given that the applicant has to attach copy of the invoice / demand notice, as in Form 3 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, served on the corporate debtor and not to the KMP of the CD.
22. In so far as the decision in the case of Niraj Kumar (Supra) is concerned, that was a case where the dispute was about the nomenclature of the Company because the name of the company was Lex Innova Digital Payments Pvt. Ltd. which was mentioned as LI Digital Payments Pvt. Ltd. and in this regard, this court has observed as under:-
"10. The pointed issues before us for our consideration is two-fold. Firstly, we need to determine whether the Demand Notice as issued was defective and whether it was ineffectively served. Secondly, we need to see whether the pre- existing dispute existing between the parties arising from FIR No. 499/2019 is supported by evidence.
Comp. App. (AT) (Ins) No. 247 of 2023 15
11. Coming to the first issue, we may begin with the rival contentions surrounding the nomenclature of the Corporate Debtor. It has been contended by the Corporate Debtor that the correct name of the Respondent No. 2 company is "LI Digital Payments Pvt. Ltd." but has been wrongly depicted as "Lex Innova Digital Payments Pvt. Ltd". The two being different entities and the Demand Notice having been addressed to "Lex Innova Digital Payments Pvt. Ltd.", the notice was therefore defective. The rival contention of the Operational Creditor is that the acronym "LI"
stands for Lex Innova and the Corporate Debtor have themselves used the word Lex Innova in the letter-head of the Appointment Company Appeal (AT) (Ins.) No. 566 of 2022 Letter dated 02.08.2018 issued by them to the Operational Creditor. Thus, the Corporate Debtor is also clearly associated with the name "LexInnova".
12. We also note that this issue of nomenclature has been deliberated at length by the Adjudicating Authority in the Impugned Order after having examined various material on record including the Appointment letter, Demand notice and Company Master data as reproduced below:
"23. That from perusal of the aforesaid document, we observe that although the Demand Notice is addressed to Lex Innova Digital Payments Pvt. Ltd., however, in the main body of the Demand Notice, the Corporate Debtor has also been addressed as "LI Digital Payments Pvt. Ltd bearing CIN No. U74999DL2018PTC330177", which matches with the CIN of the Corporate Debtor herein, as reflected in the master data annexed.
24. Since the Corporate Debtor has identified itself as "lexinnova"
in the Appointment Letter and the Demand Notice issued under Section 8 contains both the names of the Corporate Debtor i.e, "Lex Innova Digital Payments Pvt. Ltd." as well as the "LI Digital Payments Pvt. Ltd.", we do not find any deficiency in the issuance of the Demand Notice by the Applicant on this ground."
13. In addition we note that even in the Settlement slip at page 117 of Appeal Paper Book ("APB" in short), the word Lexinnova has been used by the Corporate Debtor Company. Further the forwarding email from the HR Team of the Company Appeal (AT) (Ins.) No. 566 of 2022 Corporate Debtor to the Respondent No.1 also uses the word Lexinnova as may be seen at page 116 of APB. We are therefore satisfied that there are no cogent reasons to disagree with well-considered findings of the Adjudicating Authority that there Comp. App. (AT) (Ins) No. 247 of 2023 16 was no deficiency in the Demand Notice with regard to nomenclature of the Corporate Debtor Company.
14. This now brings us to the issue of effective service of the Demand Notice. The Learned Counsel for the Appellant has stated that the Operational Creditor annexed two Speed Post receipts bearing two separate consignment numbers to prove the service of the Demand Notice dated 09.12.2019 but filed the tracking report of only consignment. Furthermore, the demand notice seems to have been served at 4th Floor, Plot No.30, STPI Building, Electronic City, Udyog Vihar, Sector 18, Gurgaon-122015 which was the previous branch office of the Corporate Debtor. The Demand Notice has been claimed to have been allegedly served at an office address which had ceased to be office of the Corporate Debtor since their lease for this building stood terminated and the physical possession of the office was not with the company from 30.09.2019.
15. Moreover, it is the Appellant's contention that the address at which the Operational Creditor had served the Demand Notice was the branch office address and not the registered address of the Corporate Debtor in terms of the Company Master data. The Operational Creditor had thus failed to serve the Demand Notice at the registered office of the Corporate Debtor. It is, therefore, the case of the Appellant that the Operational Creditor failed to serve the Demand Company Appeal (AT) (Ins.) No. 566 of 2022 Notice at the correct address and also in not having sent the same by email had defaulted in complying with the provisions of the Rule 5(2)(b) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Thus the statutory mandate given for 10 days to reply to the Demand Notice having been denied and thereby the defence to raise a pre-existing dispute not being available, admission of Section 9 application by the Adjudicating Authority was legally untenable."
23. The aforesaid judgment, therefore, is not on the issue which has been addressed before this Court, therefore, the said judgment is on its own facts and has settled the law which is not applicable to the present case.
Comp. App. (AT) (Ins) No. 247 of 2023 17
24. Thus, in view of the aforesaid facts and circumstances, we do not find any error in the impugned order which may require any interference by this Court. Hence, the present appeal fails and the same is dismissed. No Costs.
[Justice Rakesh Kumar Jain] Member (Judicial) [Mr. Barun Mitra] Member (Technical) Sheetal/Ravi Comp. App. (AT) (Ins) No. 247 of 2023