ORDER

Per : Justice Rakesh Kumar Jain: (Oral) 17.03.2023: This appeal is directed against the order dated 28.04.2017 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Allahabad Bench), by which a petition bearing C.P (IB) No. 36/ALD/2017 filed by the Appellant under Section 9 of the ‘Insolvency and Bankruptcy Code, 2016’ (in short ‘Code’), R/w Rule 6 of the ‘Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules 2016’, has been dismissed.

2. In the first round of litigation, the Appellant was nonsuited by this Tribunal vide its order dated 12.09.2017 on the ground of its locus standi. However, the order dated 12.09.2017 was challenged by the Appellant before the ‘Apex Court’ in ‘Civil Appeal No. 20978 of 2017’, which was allowed on 30.04.2019 reported as 2019 (11) SCC 332 and the matter was remanded back to this Tribunal for adjudication.

3. During the course of hearing, it was argued by counsel for the Appellant that there are two issues involved in this appeal for consideration of this Tribunal, namely, as to whether the Application filed under Section 9 of the Code was premature though it has not been filed after the expiry of 10 days from the date of offer of notice issued under Section 8 of the Code? and whether there was a pre-existing dispute on account of which the application was dismissed? 4. Counsel for the Appellant opened his argument to deal with the first issue which goes to the root of the case because if it is found that the application filed by the Appellant under Section 9 of the Code was premature, the other issue regarding as to whether there was a pre-existing dispute or not, need not to be answered.

5. Counsel for the Appellant has submitted that the notice under Section 8 of the Code was prepared on 14.03.2017 and posted on the same day through speed post and as per tracking report, the said notice was first offered to be delivered to the Respondent on 17.03.2017 at 05:30PM but could not delivered because the premises was found locked.

6. He has further submitted that since the address of the Respondent was correct and the notice was sent through registered post (speed post), therefore, as per Section 27 of the General Clauses, Act 1897 (for short ‘ the Act of 1897’) presumption of delivery of notice has to be drawn w.e.f. 17.03.2017 and since the petition under Section 9 of the Code was filed on 28.03.2017, therefore, it has to be presumed that the said petition was filed 10 days after delivery of notice and thus there was a complete compliance of the provisions of Section 8 & 9 of the code and the observations made by the Adjudicating Authority that “As the notice is received by Corporate Debtor only on 21st March it cannot be presumed concluded that 10 clear days were given enabling the Corporate Debtor for either making repayment of debts or to inform about the dispute in existence. Hence, we find that present application on this ground alone is not complete and found fit for admission.” is erroneous.

7. Counsel for the Appellant has relied upon a decision of the Hon’ble Supreme Court rendered in the case of C.C.Alavi Haji Vs. Palapetty Muhammed and Anr (2007) 6 SCC 555 to contend that in case where the notice is properly addressed and is posted through registered post, even if not delivered to the Recipient for the reason like refusal, not available in the house, house locked, shop closed or addressee not in station, it should be presumed as due service in view of Section 27 of the Act of 1897.

8. On the other hand, Counsel appearing on behalf of the Respondent has submitted that as per tracking report (Annexure-B), the demand notice dated 14.03.2017 was first offered for delivery on 17.03.2017 and when it was found that the door of the premises was locked, it was again offered for delivery on 18.03.2017 at 15:06 hours but it could not be delivered because the door of the premises was again found locked and then it was offered for delivery on 20.03