Company Appeal (AT) (Insolvency) No. 1008 of 2019 1 of 5

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency) No. 1008 of 2019

[Arising out of Order dated 02^nd September 2019 passed by the

Adjudicating Authority/National Company Law Tribunal, New Delhi in

Company Petition (IB.) No. 1058/ND/2018]

IN THE MATTER OF:

Shubham Jain

S/o Shri Virendra Jain

R/o C-10, Ramprastha

Ghaziabad (UP)

…Appellant

Versus

1.

Gagan Ferrotech Limited

having its registered office at:

113/1B, Chittaranjan Avenue

7^th Floor, Room No. 7C

Kolkata – 700073

…Respondent No.1

2.

Manju J Homes India Limited

having its registered office at:

C-294, Vivek Vihar

Delhi – 110095

Through Interim Resolution Professional

Shri Harish Goyal

431, Kanungo Apartments

Plot No.71, I.P. Extension

Patparganj, New Delhi

…Respondent No.2

Present:

For Appellant

: Shri Sanchit Garg, Advocate

For Respondent

: Ms Soumya Dutta, Advocate (R-1)

Shri Abhishek Anand, Shri Viren Sharma and

Shri Kunal Godhwani, Advocates (for RP – R2)

J U D G M E N T

[Per; V. P. Singh, Member (T)]

1.

The present Appeal has been filed against the impugned order dated

02^nd September 2019 in CP (IB) No. 1058/ND/2018 passed by Adjudicating

Authority (National Company Law Tribunal), New Delhi (Court IV) admitting

Company Appeal (AT) (Insolvency) No. 1008 of 2019 2 of 5

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:

Company Appeal (AT) (Insolvency) No. 1008 of 2019 3 of 5

"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 th