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TMI Blog2018 (6) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Arun Kathpalia, Senior Advocate assisted by Shri Dhrupad Das, Advocate. Shri Amit Gupta, Company Secretary For The Respondents : Dr. U.K. Choudhary, Senior Advocate assisted by Shri Arvind Kumar Gupta, Ms. Purti Marwaha Gupta and Ms. Henna George, Advocates JUDGEMENT SUDHANSU JYOTI MUKHOPADHAYA, J. As these appeals have been preferred by a common Appellant- Mr. Chetan Sharma, Director/Shareholder of the 'Corporate Debtor'- (Swadisht Oils Pvt. Ltd.) against the common order dated (30th May, 2017)/ 1st June, 2017 passed by the Adjudicating Authority (National Company Law Tribunal), Allahabad Bench, Allahabad, and as common question of law is involved, they were heard together and disposed of by this common judgment. 2. Five 'Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir liability to the extent as mentioned above, the 'Corporate Debtor' failed to pay such amount even after receipt of the demand notice(s) issued by the 'Operational Creditors' as per sub-section (1) of Section 8 of the 'I&B Code'. 6. The case of the Appellant is that the 'Corporate Debtor' ordered for purchase of 'crude rice bran oil' from the 'Operational Creditors' on various occasions. However, no supplies were received by the 'Corporate Debtor' against the various purchase orders placed by it; without delivering the products, the 'Operational Creditors' raised various invoices against alleged purchase of the crude oils, as claimed and noted above. 7. According to the Appellant, one Mr. Dinesh Arora, the then Managing Director of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m when the 'Operational Creditors' and the 'Corporate Debtor' agreed that Mr. Dinesh Arora shall stand in relation to the 'Corporate Debtor' and would be liable for the debts incurred by the 'Operational Creditors'. Thus a novation of the contract under Section 62 of the Indian Contract Act, 1872, took place, by which the 'Operational Creditors' are bound by law and cannot resile. 11. Learned counsel appearing on behalf of the 'Operational Creditors' disputed the aforesaid claim. It was submitted that the 'Operational Creditors' were not parties to any of the Memorandum of Understanding signed between the 'Corporate Debtor' and Mr. Dinesh Arora. Such so-called Memorandum of Understanding was reached between them fraudulently with a view to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ' and the 'Operational Creditors'. 17. An outstanding in the account of a borrower (customer), is a debt due and payable by the borrower to the Creditor. The Creditor is the owner of such debt. Such debt is an asset in the hands of a Creditor, whether 'Secured Creditor' or 'Unsecured Creditor' or 'Operational Creditor' or 'Financial Creditor'. The creditor can always transfer its assets (debt) to an assignee but the borrower cannot transfer its liability of debt to a third party. Therefore, the Appellant cannot take advantage of agreement of transfer of liability of debt of 'Corporate Debtor' to Mr. Dinesh Arora. 18. The alleged Memorandum of Understanding was never signed by the 'Operational Creditors'. It is not the case of the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the other shareholder but that will not absolve the 'Corporate Debtor' of its liability of payment to 'Operational Creditors'. 21. In the case of J.R. Agro Industries (P) Limited a specific plea has been taken that demand notice under sub-section (1) of Section 8 of the 'I&B Code' was issued by the said 'Operational Creditor' on 18th January, 2017, which was received by the 'Corporate Debtor' on 23rd January, 2017. The Insolvency application under Section 9 was filed on 20th February, 2017 and no reply was filed within the stipulated period of ten days. The notice of dispute under Section 8(2) was issued on 2nd March, 2017, which cannot be taken into consideration to hold that there was 'existence of dispute'. 22. The 'Operational Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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