NCLT New Delhi Rules, Failure To Deliver Second Demand Notice After First Is Returned Unserved Renders Petition U/S 9 Of IBC Not Maintainable
Pranav B Prem
The New Delhi Bench-IV of the National Company Law Tribunal (NCLT), comprising Shri Manni Sankariah Shanmuga Sundaram (Judicial Member) and Shri Atul Chaturvedi (Technical Member), has held that a petition under Section 9 of the Insolvency and Bankruptcy Code, 2016, is not maintainable when the demand notice is returned unserved with the remark “addressee has left without instruction,” and no further attempts are made by the operational creditor to effect delivery through alternative modes.
The application was filed by Delhivery Limited under Section 9 of the IBC seeking initiation of the Corporate Insolvency Resolution Process (CIRP) against Futuretimes Technology India Private Limited for an alleged default of ₹1,88,72,046. The applicant contended that the respondent, engaged in commercial dealings since the financial year 2018–19, had availed courier and logistical services pursuant to a principal agreement dated 08.10.2018, followed by supplementary agreements expanding the scope of services. Despite irregular payments, the applicant continued to provide services in good faith, but the outstanding dues remained unpaid, prompting the filing of the present petition.
The operational creditor had issued demand notices dated 16.12.2022 and 28.12.2022 under Section 8 of the IBC. However, both notices were returned with the remark “addressee has left without instruction.” Additionally, attempts to serve the notice by email also failed. The Tribunal noted that the email addressed to the earlier domain of the corporate debtor bounced back, while subsequent emails to alternative addresses (retrieved from the GST portal) failed to elicit any meaningful response. One individual claimed to have no ongoing association with the company, while others, including a named director, remained unresponsive.
The Tribunal emphasized that service of the demand notice is a mandatory pre-condition under Section 8(1) of the IBC, citing the Supreme Court’s decision in Macquarie Bank Limited v. Shilpi Cable Technologies Ltd [(2018) 2 SCC 674] , which clarified that the actual or constructive service of the notice is essential. It further relied on the ruling of the NCLAT in Shubham Jain v. Gagan Ferrotech Ltd [Company Appeal (AT) (Insolvency) No. 145 of 2020], where it was held that if a demand notice is returned with remarks like “addressee has left,” and no alternative steps are taken for valid service, the statutory requirement under Section 8 stands unfulfilled.
Despite being granted an opportunity to ensure service through permissible alternatives, the operational creditor failed to achieve successful delivery of the demand notice. The Tribunal observed that no conclusive evidence was presented to prove that the demand notice was duly served in accordance with Rule 5 of the I&B (Application to Adjudicating Authority) Rules, 2016. It was also noted that the current status or whereabouts of the corporate debtor remain unascertainable, thereby complicating any further efforts of service. In conclusion, the Tribunal held that since the operational creditor did not effectuate proper service of the demand notice, which is a statutory requirement, the present petition under Section 9 is not maintainable. Accordingly, the application was dismissed.
Appearance
For the Applicant: Adv. Rahul, Adv. Vardaan Jain
For the Respondent: Adv. Charu Ambwan, Adv. Shreya Garg for R-1, Adv. Subhojit Dutta for R-5, Adv. Videh Vaish, Adv. Lalit Mohan for R-4
Cause Title: Delhivery Limited V. Futuretimes Technology India Private Limited
Case No: Company Petition IB (IBC)/169(ND)2023
Coram: Shri Manni Sankariah Shanmuga Sundaram [Judicial Member], Shri Atul Chaturvedi [Technical Member]
