V.P. Singh JUDGMENT
V.P. Singh, Member (T)
1. The present Appeal has been filed against the impugned order dated 02nd September 2019 in CP (IB) No. 1058/ND/2018 passed by Adjudicating Authority (National Company Law Tribunal), New Delhi (Court IV) admitting Application u/s. 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'the Code') against the Corporate Debtor-Manju J Homes India Limited, by Shubham Jain, one of the directors of the Corporate Debtor.
2. The Appellant has challenged the impugned order of admission primarily on two grounds - (a) Demand Notice u/s. 8 of the Code was not served on the Corporate Debtor; (b) Claim of the Applicant Operational Creditor was seriously disputed.
3. The Appellant submits that the I&B Code is a complete Code in itself, overriding all the other Acts. The concept of deemed delivery cannot be applied by necessary implication to Demand Notice u/s. Section 8 of the Code read with Section 9 and Rules framed thereunder. The Appellant further submits that the service of notice on the Director of the Corporate Debtor is no service in the eyes of the law given the provisions of the Code. Furthermore, it is submitted that the claim of the Operational Creditor is seriously disputed. Still, the opportunity to dispute the same was neither provided to the Corporate Debtor at the stage of notice nor the stage of filing of the reply to the petition.
4. The main issue that arises for consideration in the present Appeal is whether service of Demand Notice u/s. 8 of the Code on a Director of the Corporate Debtor can be construed as deemed delivery or not for Initiation of Corporate Insolvency Resolution Process under Section 9 of the Code.
5. In the impugned order the Adjudicating Authority has observed and held:
"8. As per the delivery status report, an attempt was made on 27.06.2018 to deliver the said notice to the Respondent at its registered address, but it remained unserved as the 'addressee moved'. Again, on the very date, an attempt was made to serve on the Respondent at its another address but the same remained "unclaimed". A demand notice demanding payment in respect of unpaid operational debt as required under Section 8 of IBC Code is duly served on the Respondent on 27.06.2018 as evident from the service affidavit containing receipt of speed post and the tracking report, however, despite the same, the Corporate Debtor has failed to pay the amount demanded nor has replied to the demand notice raising any dispute, hence this application, seeking to unfold the process of CIRP.
9. As per Part IV of Form 5, the applicant has stated that total debt due and payable is Rs. 84,47,147/- (Rupees Eighty-Four Lakhs Forty- Seven Thousand One Hundred and Forty- Seven only) which includes Principal amount of Rs. 66,03,856.78/-and interest of Rs. 18,43,290.22/- @18% p.a. till 20.06.2018.
The applicant has mentioned that default occurred on 02.12.2016.
10. The Respondent did not appear though Section 8 notice and the present application were duly served on the Respondent and proof of service filed by the applic........